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THE 

NOTARY'S  MANUAL 


A    LUCID   AND  CONCISE  TREATMENT  OF  THE  DUTIES 
OF   NOTARIES  PUBLIC,  TOGETHER  WITH    FORMS 
OF  CERTIFICATES  OF  ACKNOWLEDGMENT 
AND     GENERAL     LEGAL     INFORMA- 
TION WITH  WHICH  ALL   NO- 
TARIES   SHOULD     BE 
FAMILIAR. 


PRICE     $.75. 


ADDRESS  W.  H.  PYBURN,  SALINAS,  CAL. 


SALINAS,  CAL.: 

N.  G.  WYATT,  BOOK  PUBLISHER. 
1897. 


Copyrighted   in  189'  by  W.  H.  Pyburn. 


PREFACE. 


The  serious  consequences  which  may  follow  the 
negligent  performance  of  the  official  duties  of  notary 
public;  the  uncertainty  which  prevades  a  large  class 
of<  these  officers  concerning  the  proper  execution  of 
these  duties,  together  with  a  moderate  desire  to 
accumulate  the  sinews  of  war,  furnish  the  sole  excuse 
for  the  publication  of  this  modest  volume. 

Little  will  be  found  in  its  pages  that  is  not  already 
known  to  the  veteran  notary,  but  to  the  novice  and 
to  him  who  is  seldom  required  to  exercise  his  notarial 
functions,  it  is  believed  a  short  treatise,  of  conven- 
ient size,  embracing*  matters  about  which  every 
notary  should  be  informed,  as  well  as  numerous  cor- 
rect forms,  of  certificates  of  acknowledgment,  etc., 
will  prove  useful. 

There  is  also  included  considerable  general  infor- 
mation concerning  Deeds,  Homesteads,  Chattel  Mort- 
gages, Wills,  Mortgages  of  Real  Estate,  Negotiable 
Instruments,  Landlord  and  Tenant,  Bills  of  Sale  and 
Partnership,  each  of  which  subjects  is  treated  under 
a  separate  head. 

The  Fee-bill  now  in  force  is  alsoi included. 

This  book  has  been  prepared  with  reference  to  the 
laws  of  California  solely. 


INDEX. 

Abandonment;  See  Homesteads 
Affidavits  and  depositions  p  17 

Definitions,  sec.  21 

Notary's  powers,  sec  22 

How  taken,  sec.  23 

In  what  cases,  sec.  24 

Caption  and  Certificate,  sec.  25 

Transmission,  sec.  26 

When  may  be  used    sec.  27 

Fees,  sec.  28 

Acceptance;  See  Protesting  Commercial  Paper 
Acknowledgments,  p  13 

Object  and  effect  of,  sec.  14 

How  t^ken,  sec.  15 

Certificate,  sec.  16 

Title  passes  without,  sec.   17 

Identity  of  person,  sec.  18 

By  corporations,  sec.  19 

Liability  for  defects,  sec.  20 
Adverse  Possession;  See  Miscellaneous 
Attorney;  See  Wills 
Bank  Note;  SeeNegotiable  Instruments 
Bill  of  sale,  p  53 

Definition,  sec.  86 

Nature  of,  sec.  87 

Validity  and  requisites,  sec.  88 
Bills  of  Exchange;  See  Negotiable  Instruments 
Bona  Fide  Purchaser;  See  Deeds,  Mortgages,  Chattel 
Mortgages,  Bill  of  Sale,  Negotiable  Instruments. 
Cancellation;  See  Wills 
Certificates;  ^ee  Acknowledgments 
Chattel  Mortgages,  p  34 

Property  subject  of,  sec.  58 

Execution  and  form  of,  sec.  59 

vSecond  mortgage;  penalty,  sec.  60 

Crop  Mortgage;  continuance  of,  sec.  61 

Recording,  necessity  of,  sec.  62 


Check;  See  Negotiable  Instrument 

Codicil;  See  Will 

Commercial  Paper;  See  Negotiable  Instruments 

Community  Property;  See  Deeds,  Homesteads,  Wills 

Mortgages 

Condition;  See  Deeds 

Consideration:  See  Negotiable  Instruments 
Construction;  See  Deeds,  Wills 
Conveyances;  See  Deeds,  Bill  of  Sale 
Corporation;  See  Acknowledgment 
Covenants;  See  Deeds 
Declaration;  See  Homesteads 
Deeds,  p  25 

Kinds  of,  sec.  39 

Definitions,  sec.  40 

Of  community  property,  sec.  41 

Of  the  homestead  property,  sec.  42 

I  Execution  of,  sec.  43 

Delivery,  sec.  44 

Acknowledgment,  sec.  45 

Construction  of,  sec.  46 

Delivery;  See  Deeds,  Negotiable  Instruments 
Demand;  See  Bill  of  Sale,  Negotiable  Instruments 
Description;  See  Deeds 
Escrow;  See  Deeds 
Evidence;  See  Presumptions 
Executor;  See  Wills 
Fee  Bill,  Page  65 
Foreclosure;  See  Mortgages 
Forms;  See  Acknowledgments 
Good  Faith;  See  Bona  Fide  Purchaser 
Good  Will;  See  Miscellaneous 
Head  of  Family;  See  Homesteads 
Homesteads,  p  29 

Kinds  of,  sec.  47 

How  Created,  sec.  48 

Who  may  select,  sec.  49 

From  what  property  selected,  sec.  50 

Exempt  from  claims,  sec.  51 


INDEX.  iii. 


Value,  limit  of,  sec.  52 

Where  excessive,  sec.  53 

Liens  on,  sec.  54 

Abandonment,  sec.  55 

Conveyance  or  incumbrance  of,  sec.  56 

Disposition  on  death,  se'c.  57 
Intention;  See  Deeds. 
Landlord  and  Tenant,  p  50 

Relation  of,  sec.  80 

Rights  of  the  parties,  sec.  81 

Term  of  hiring,  sec.  82 

Rent,  how  payable,  sec.  83 

Termination  of  tenancy,  sec.  84 

Notice  to  quit  and  ousting,  sec.  85 
Miscellaneous;  Page  58 
Minors;  Page  58 
Mortgages  of  Real  Property,  p  43 

Definition  of,  how  created,  sec.  71 

Lien  of,  extends  to  what,  sec.  72 

What  interests  subject  of,  sec.  73 

Assignment  of,  sec.  74 

Release,  limitations,  redemption,  sec.  75 

Miscellaneous,  sec.  76 
Negotiable  instruments,  p  48 

Definition  of  and  kinds,  sec.  77 

Negotiability,  meaning  of,  sec.  78 

Consideration,  sec.  79 

Delivery  and  limitations,  sec.  79 
Notary  Public,  Page  7 

Origin  of   office,  sec.  i 

Appointment  and  number,  sec.  2 

Term  of  office,  sec.  3 

Qualifications,  sec.  4 

Jurisdiction,  sec.  5 

Duties,  sec.  6 

Resignation,  sec.  7 

Records,  sec.  8 

Bond.  sec.  9 

Certificate,  transmission  of,  sec.  10 


IV.  INDEX. 

Liability,  sec.  n 

Acting  without  qualifying,  sec.  12 

Fees,  sec.  13 
Partnership,  p  55 

Definition  and  nature  of,  sec.  89 

The  property  of,  sec.  90 

Authority  denied  partner,  sec.  91 

Profits   and  losses,  sec  92 

Liability  to  third  person,  sec.  93 

Dissolution,  sec.  94 
Presumptions;  See  Miscellaneous 
Promissory  Note;  See  Negotiable  Instruments 
Protesting  commercial  paper,  p  22 

Notary's  duty,  sec.  29 

Presentment  for  acceptance,  sec   30 

Presentment  to  drawee,  sec.  31 

Time  of,  sec.  32 

Acceptance  .sec.  33 

Presentment  for  payment,  sec.  34 

Place  of,  sec.  35 

Protest,  what  is,  sec.  36 

Protest,  applicable  to  what,  sec.  37 

Form  of,  sec.  38 
Recording;    See    Deeds,    Bill    of    Sale,    Homestead, 

Chattel  Mortgages,   Mortgages 
Re-delivery;  See  Deeds. 
Specific  Performance;  See  Miscellaneous. 
Statute   of  Limitations;  See    Acknowledgments,   Ne- 
gotiable Instruments 
Title;  See  Deeds 

Wills,  p  38 

Who  may  make,  sec.  63 

Kinds  of,  sec.  64 

Definitions,  sec.  65 

Execution  of,  witnesses,  sec.  66 

Custody  of,  sec.  67 

What  property  subject  of    sec   68 

Cancellation  and  revocation,  sec.  69 

Executor,  attornev,  interpretation,  sec.  70 


CHAPTER  I. 

ORIGIN    Of    OFFICE   AND   APPOINTMENT  TO, 

1.  Origin  of  office. 

2.  Appointment  and  number, 

3.  Term  of  office. 

4.  Qualifications  requisite. 

5.  Jurisdiction  of  officer. 

/»     Origin  of  Office. 

The  office  of  Notary  Public  is  of  ancient  origin* 
In  Europe  as  early  as  the  beginning  of  the  ninth 
century  notaries  were  appointed  by  the  Prankish 
kings  and  by  the  Popes.  They  were  common  in  the 
Roman  Republic  and  are  now  fixtures  in  probably 
every  countiy  of  the  world. 

2.     Appointment]and  Number. 

In  California,  as  in  most  of  the  States,  ^the  power 
to  appoint  notaries  is  lodged  in  the  Governor,  and 
commissions  are  granted  usually  upon  petition  to 
him.  Formerly  only  a  limited  number  of  notaries 
could  be  appointed  for  each  of  the  counties,  but  since 
the  Amendment  of  1893  there  has  been  no  restriction 
as  to  number  except  as  to  counties  of  the  first  class 
which  are  limired  to  sixty  each. 


8        ORIGIN    OF   OFFICE    AND   APPOINTMENT   TO. 

j.     Term  of  Office, 

A  notary  public  now  holds  office  for  the  term  of 
four  years  from  and  after  the  date  of  his  commission. 
Prior  to  the  Amendment  of  1889  he  held  for  two 
years  only. 

4.     Qualifications  Requisite. 

To  be  eligible  to  appointment  as  notary  public 
the  applicant  must  be  at  least  twenty-one  years  of 
age;  a  citizen  of  the  United  States,  of  this  State,  and 
for  six  months  a  resident  of  the  county  for  which  he 
asks  to  be  commissioned.  The  Amendment  of  1891 
makes  women  possessing  these  qualifications  eligible 
to  appointment  to  this  office.  County  officers  and 
their  deputies,  except  District  Attorneys  and  Treas- 
urers are  not  eligible. 

5.    Jurisdiction  of  Officer. 

The  official  acts  of  a  notary  public  are  valid  only 
when  done  within  the  county  for  which  he  is  com- 
missioned, and  any  attempted  exercise  of  his  official 
duties  outside  of  such  county  would  be  absolutely 
void.  Even  though  his  certificate  of  acknowledg- 
ment purports  to  have  been  made  in  the  proper 
county,  still  if  it  be  established  that  the  acknowledg- 
ment was  in  fact  taken  elsewhere,  the  acknowledg- 
ment would  be  invalid. 


DUTIES,  POWERS  AND   FEES. 


CHAPTER  II. 

DUTIES,  POWERS  AND  FEES. 

6.  General  Duties. 

7.  On  Resignation. 

8.  Certified  Copy  of  Records. 

9.  Official  Bond, 

10.  Transmission  of  Certificate. 

11.  Liabilities  on  Official  Bond. 

12.  Acting  Without  Qualifying-penalty. 

13.  Fees. 

6.     General  Duties. 

The  duties  of  notary  public  are  prescribed  by 
Sec.  794  of  the  Political  Code  as  follows: 

When  requested,  to  demand  acceptance  and  pay- 
ment of  foreign,  domestic  and  inland  bills  of  ex- 
change, or  promissory  notes,  and  protest  the  same 
for  non-acceptance  and  non-payment,  and  to  exercise 
such  other  powers  and  duties  as  by  the  law  of  nations 
and  according  to  commercial  usages,  or  by  the  laws 
of  any  other  state,  government  or  country,  may  be 
performed  by  notaries. 

To  take  the  acknowledgment  or  proof  of  powers 
of  attorney,  mortgages,  deeds,  grants,  transfers  and 
other  instruments  of  writing  executed  by  any  person 
and  to  give  a  certificate  of  such  proof  or  acknowledg- 
ment, indorsed  on  or  attached  to  the  instrument. 

To  take  depositions  and  affidavits,  and  administer 
oaths  and  affirmations,  in  all  matters  incident  to  the 
duties  of  the  office,  or  to  be  used  before  any  Court, 
judge,  officer  or  board  in  this  State. 

To  keep  a  record  of  all  official  acts  done  by  him. 

To  keep  a  record  of  the  parties  to,  date  and  char- 
acter of  every  instrument  acknowledged  or  proved 
before  them. 


IO  DUTIES,   POWERS   AND 

When  requested,  and  upon  payment  of  his  fees 
therefor,  to  make  and  give  a  certified  copy  of  any 
record  in  his  office. 

To  provide  and  keep  an  official  seal,  upon  which 
must  be  engraved  the  arms  of  this  State,  the  words 
"Notary  Public"  and  the  name  of  the  county  for 
which  he  is  commissioned.  (The  notary's  name  may 
be  included.) 

To  authenticate  with  his  official  seal  all  official 
acts. 

7.  On  Resignation. 

If  any  notary  die,  resign,  is  disqualified,  removed 
from  office  or  removes  from  the  county  for  which  he 
is  appointed,  his  records  and  all  his  public  papers 
must,  within  thirty  days,  be  delivered  to  the  Clerk  of 
the  county,  who  must  deliver  them  to  the  notary's 
successor  when  qualified. 

8.  Certified  Copy  of  Records. 

Every  notary  having  in  his  possession  the  records 
and  papers  of  his  predecessor  in  office  may  grant 
certificates  or  give  certified  copies  of  such  records 
and  papers,  in  like  manner  and  with  the  same  effect 
as  such  predecessor  could  have  done. 

9.  Official  Bond. 

Each  notary  must  execute  an  official  bond  in  the 
sum  of  five  thousand  dollars,  which  bond  must  be 
approved  by  the  judge  of  the  Superior  Court  of  his 
county,  and  filed  and  recorded  as  other  official  bonds 
of  county  officers.  (With  the  County  Recorder.) 

(The  County  Clerk  will  furnish  blanks  on  appli- 
cation.) 


DUTIES,   POWERS   AND    FEES. 


10.      Transmission  of  Certificate . 

Each  notary,  so  soon  as  he  has  taken  his  official 
oath  and  filed  his  official  bond  must  transmit  a  cer- 
tificate of  the  facts,  under  the  hand  and  seal  of  the 
County  Clerk,  together  with  a  copy  of  his  official 
oath  signed  by  him  with  his  own  proper  signature, 
to  the  office  of  the  Secretary  of  State.  (In  practice 
the  Clerk  usually  transmits  these  documents.) 

//.     Liabilities  on  Official  Bond. 

For  the  official  misconduct  or  neglect  of  a  notary 
public  he  and  the  sureties  on  his  official  bond  are 
liable  to  the  parties  injured  thereby  for  all  the  dam- 
ages sustained. 

12  ~~  Acting  Without  Qualifying -Penalty. 

Every  person  who  exercises  any  function  of  a 
public  office  without  taking  the  oath  of  office  or  with- 
out giving  the  required  bond  is  guilty  of  a  misde- 
meanor. (Sec.  65  Penal  Code.) 

/j.     Fees. 

The  fees  of  a  notary  allowed  by  law  are  as  follows: 

For  drawing  and  copying  every  protest  for  the 
non-payment  of  a  promissory  note,  or  for  the  non- 
payment or  non-acceptance  of  a  bill  of  exchange, 
draft  or  check,  $2.00. 

For  drawing  and  serving  every  notice  of  non- 
payment of  a  promissory  note  or  of  the  non-payment 
or  non-acceptance  of  a  bill  of  exchange,  order,  draft 
or  check,  |i.oo. 

For  recording  every  protest,  fi.oo. 

For  drawing  an  affidavit,  deposition  or  other  paper, 
for  which  provision  is  not  herein- made,  for  each  folio 
(loo  words,)  30  cents. 


12  DUTIES,  POWERS  AND   FEES. 

For  taking  an  acknowledgment  or  proof  of  a  deed 
or  other  instrument,  to  include  the  seal  and  the  writ- 
ing of  the  certificate,  for  the  first  two  signatures  $1.00 
each  and  for  each  additional  signature  50  cents. 

For  administering  an  oath  or  affirmation,  50  cents. 

For  every  certificate,  to  include  writing  the  same 
and  the  seal,  $1.00. 


ACKNOWLEDGMENTS.  13 

CHAPTER  III. 
ACKNOWLEDGMENTS. 

14.  Acknowledgment;  object  and  effect  of, 

15.  How  taken;  use  of  interpreter. 

16.  Certificate  and  seal;  amendment  of. 

17.  Title  passes  without;  exception. 

18.  Identity  of  person;  how  established. 

19.  Acknowledgments  by  corporations. 

20.  Liabilities  for  defects;  limitations. 

14.    Acknowledgment;   Object  and  Effect  of. 

The  acknowledgment  of  an  instrument  and  the 
notary's  certificate  serve  two  purposes  only,  the  first 
of  which  is  to  permit  the  instrument  to  be  recorded, 
and  the  second  of  which  is  to  allow  of  its  introduction 
in  evidence  without  further 'proof  of  its  execution. 

75.     How  Taken;   Use  of  Interpreter. 

To  take  an  acknowledgment  it  is  only  necessary 
that  the  grantor  subscribe  the  instrument  and  de- 
clare to  the  notary  that  he  knows  its  contents  and 
that  he  acknowledges  its  execution.  If  the  language 
spoken  by  the  grantor  is  not  understood  by  the 
notary  an  interpreter  may  be  called  and  sworn  to  coi- 
rectly  translate  the  proceedings,  and  the  acknowledg- 
ment may  thereupon  be  taken  through  the  interpre- 
ter. The  fact  that  it  was  taken  through  an  inter- 
preter should  be  stated  in  the  certificate. 

Prior  to  the  Amendment  of  1891  it  was  necessary 
in  taking  the  acknowledgment  of  a  married  woman 
to  examine  her  separate  and  apart  from  her  husband, 
but  since  the  adoption  of  that  amendment  the 
acknowledgment  of  a  married  woman  may  be  taken 
in  the  same  manner  as  that  of  any  other  individual. 
If  the  grantor  be  a  widow,  widower  or  unmarried  per- 
son it  is  advisable  that  the  certificate  show  that  fact. 


T4  ACKNOWLEDGMENTS. 

r6.     Certificate  and  Seal;    Amendment  of. 

Certificates  of  acknowledgment  should  be  sub- 
stantially the  same  as  the  forms  which  appear  in  this 
book  as  they  are  all  correct,  and  it  should  be  remem- 
bered that  a  certificate  has  no  validity  unless  im- 
pressed with  the  notary's  seal.  There  are  two  essen- 
tials, aside  from  jurisdictional  recitals,  which  posi- 
tively must  appear  on  every  certificate  of  acknowl- 
edgment; these  are,  that  the  instrument  was  in  fact 
acknowledged,  and  by  the  identical  individual  by 
whom  it  purports  to  have  been  executed. 

After  making  his  return  the  notary's  function 
with  reference  to  the  acknowledgment  of  an  instru- 
ment ceases,  and  he  cannot  amend  his  certificate. 

77.     Title  Passes  Without  Acknowledgment;  Ex- 
ception. 

Ordinarily  the  acknowledgment  of  an  instrument 
imparts  no  additional  validity  to  it.  An  unacknowl- 
edged deed,  when  delivered,  passes  the  title  as  com- 
pletely as  if  it  had  been  acknowledged.  It  °s  good 
as  against  the  claims  of  an  attaching  creditor  of  the 
grantor,  but  until  it  is  acknowledged  and  recorded  it 
is  void  as  against  subsequent  innocent  purchasers  or 
incumbrancers  in  good  faith  for  value,  and  as  against 
judgments  affecting  the  title,  unless  the  conveyance  is 
recorded  prior  to  the  recording  of  notice  of  action.  A 
lease  for  a  term  not  exceeding  one  year  is  good  against 
all.  Prior  to  the  Amendment  of  1891  an  acknowledg- 
ment was  a  necessary  part  of  the  execution  of  any  deed 
by  a  married  woman,  but  it  is  no  longer  necessary  ex- 
cept in  the  single  instance  of  the  sale  or  incumbrance 
of  the  homestead  of  a  married  person.  Section  1242 
of  the  Civil  Code  yet  provides  that  in  executing  an 
incumbrance  upon  or  sale  of  a  homestead  by  a  mar- 
ried woman  the  acknowledgment  is  a  part  of  the  exe- 
cution itself. 


AC  K  N  O  W  1<  K  1> G  M  K  N  T S .  1 5 

Jt  must  be  reuiembered,  however,  that  while  an 
unacknowledged  deed,  when  delivered,  will  pass  title, 
except  in  case  of  a  homestead,  still  it  is  not  entitled 
to  be  recorded  until  duly  acknowledged  and  certified. 

iS.     Identity  of  Person;  How  Established. 

If  the  person  whose  acknowledgment  is  to  be  taken 
be  not  personally  known  to  the  notary,  the  acknowl- 
edgment must  not  be  taken  or  certified  until  after 
the  notary  has  heard  sworn  testimony  from  at  least 
one  credible  witness  that  the  person  whose  acknowl- 
edgment is  to  be  taken  is  the  identical  person  he  re- 
presents himself  to  be.  If  the  one  to  whom  a  deed  or 
mortgage  is  to  be  made  introduces  the  grantor  or  mort- 
gagor to  the  notary  and  the  acknowledgment  is  then 
taken,  the  one  making  the  introduction  cannot  com- 
plain of  a  mistake  as  to  identification.  In  case  tes- 
timony is  heard  the  certificate  should  show  the  fact 
that  the  identity  of  such  individual  was  established 
by  sworn  proof.  (See  form  No.  I.) 

ig.     Acknowledgments  by   Corporations. 

The  acknowledgment  of  a  corporate  transfer  may 
be  made  by  the  president  or  secretary  of  the  corpora- 
tion, and  Form  No.  II  should  be  used. 

20.     Liability  for  Defects;    Limitations. 

The  law  of  this  State  makes  a  notary  liable  on  his 
official  bond  for  any  damages  sustained  through  a 
negligent  performance  of  his  duties.  The  liability 
of  the  bondsmen  is  not  exhausted  by  a  first  recovery 
but  extends  to  each  official  act  of  the  notary. 

The  statute  of  limitations  which  would  bar  a 
recovery  for  such  damages  commences" to^  run^f roin 
the  date  of  the  performance  of  the  negligent  act  and 
not  from  the  date  of  the  discovery  of  the  negligence. 


16 

Where  a  deed  or  mortgage  has  been  subscribed 
and  delivered,  but  not  acknowledged,  an  action  may 
be  maintained  to  compel  its  acknowledgment. 

If  the  certificate  of  acknowledgment  is  defective 
an  action  may  be  maintained  to  reform  and  correct  it. 


AFFIDAVITS  AND   DEPOSITIONS.  17 

CHAPTER  IV. 

AFFIDAVITS   AND   DEPOSITIONS. 

21.  Affidavits  and  depositions;    definitions  of. 

22.  Powers  in  taking  depositions. 

23.  How  taken. 

24.  In  what  cases  taken. 

25.  The  caption  and  certificate. 

26.  Transmission  of  deposition. 

27.  When  may  be  used. 

28.  Fees. 

2T     Affidavits  and  Depositions.      Definitions  of. 

An  affidavit  is  a  written  declaration,  under  oath, 
made  without  notice  to  the  adverse  party. 

A  deposition  is  a  written  declaration,  under  oath, 
made  after  notice  to  the  adverse  party,  for  the  pur- 
pose of  enabling  him  to  attend  and  cioss  examine. 
An  affidavit  is  usually  in  a  narrative  form,  while  a 
deposition  is  taken  by  question  and  answer. 

22.     Powers  in  Taking  Depositions. 

The  attendance  of  the  person  whose  deposition  is 
to  be  taken  is  secured  by  the  service  of  a  subpoena 
issued  and  signed  by  the  notary,  after  the  party  de- 
siring the  taking  of  such  deposition  has  made  an  affi- 
davit showing  that  the  case  is  within  Section  2021  of 
the  Code  of  Civil  Procedure. 

A  notice  that  the  deposition  is  to  be  taken  must 
be  served  upon  the  adverse  party  five  days  before 
the  day  set  for  the  taking  of  the  deposition,  and  to 
this  time  must  be  added  one  day  for  each  twenty-five 
miles  of  the  distance  of  the  place  of  the  taking  of 
the  deposition  from  the  residence  of  the  person  to 
whom  notice  is  given.  Upon  showing  good  cause  a 
judge  may  provide,  by  order,  for  a  shorter  notice.  A 
copy  of  the  affidavit  above  mentioned  must  be  served 


18  AFFIDAVITS   AND    DEPOSITIONS. 

with  the  notice  to  the  adverse  party,  and  if  the  time 
of  notice  has  been  shortened,  a  copy  of  the  order 
shortening  it  must  also  be  served. 

The  taking  of  the  deposition  should  begin  at  the 
hour  and  upon  the  day  fixed;  particularly  so  if  only 
one  of  the  parties  attends.  In  the  absence  of  one  of 
the  parties  the  notary  has  no  authority  to  postpone 
the  taking  of  the  deposition  to  some  other  hour  or 
day.  The  notice  usually  provides  that  the  taking  of 
the  deposition  will  commence  upon  a  day  certain  and 
if  not  completed  on  said  day,  then  that  it  will  be  con- 
tinued from  day  to  day  until  completed.  In  the  ab- 
sence of  a  provision  in  the  notice  that  if  it  is  not  com- 
pleted on  the  day  named  that  the  taking  will  be  con- 
tinued from  day  to  day  until  completed,  the  notary 
must  complete  the  examination  on  the  particular  day 
named,  and  has  no  authority  to  finish  the  examina- 
tion on  the  next  or  a  subsequent  day. 

If  both  parties  are  present  and  consent  to  a  post- 
ponement or  continuance  it  may  be  had,  but  without 
such  consent  it  would  be  irregular. 

The  notary  ought  not  to  be  related  to  either  of  the 
parties,  or  interested  in  the  proceedings  in  which  the 
deposition  is  taken.  Neither  should  he  be  related  to 
the  attorneys  in  the  case,  nor  should  he  bs  the  clerk 
or  assistant  of  such  attorneys.  The  adverse  party 
may  rightfully  object  to  the  taking  of  the  deposition 
by  a  notary  occupying  any  of  these  relations;  the 
objection  should  be  made  before  the  examination 
actually  commences,  and  if  over-ruled,  should  appear 
in  the  body  of  the  deposition,  and  it  is  probable  that 
the  deposition  taken  under  such  circumstances  would 
not  be  received  in  evidence  at  the  trial  of  the  case. 

Section  1991  of  the  Code  of  Civil  Procedure  appar- 
ently gives  to  the  notary  authority  to  punish  a  wit- 
ness for  contempt  for  disobedience  of  a  subpoena,  re- 
fusal to  be  sworn,  refusal  to  answer  or  refusal  to  sub- 


AFFIDAVITS   AND    DEPOSITIONS*  19 

scribe  an  affidavit  or  deposition  when  required,  but 
\ve  have  found  no  case  where  a  notary  has  attempted 
the  exercise  of  tnis  authority  and  as  he  is  purely  a 
ministerial  officer  while  taking  a  deposition  it  is  prob- 
able the  Courts  would  not  uphold  an  order  made  by 
him  punishing  a  witness  for  contempt.  In  Lezinsky 
vs.  Superior  Court,  72  Cal.,  510,  it  was  held  that  the 
Court  in  which  the  action  was  pending  had  no  power 
to  punish  a  witness  for  refusal  to  obey  a  notary's 
subpoena. 

23.     Depositions;  How  Taken 

In  taking  a  deposition  the  witness  should  first  be 
sworn  to  speak  the  truth,  the  whole  truth  and  noth- 
ing but  the  truth.  The  exact  words  of  the  witness 
should  be  written  unless  the  parties  agree  to  have  the 
deposition  taken  in  a  different  manner.  If  an  objec- 
tion be  made  to  a  question  asked,  the  objection 
should  be  taken  down  as  made.  If  the  witness  de- 
clines to  answer  a  question,  that  fact  and  the  reason 
assigned  should  also  appear.  If  a  party  has  any 
objection  to  the  FORM  of  a  question  he  must  make  it 
at  the  time  such  question  is  asked  or  he  will  not  be 
permitted  to  urge  it  when  the  deposition  is  offered  in 
evidence.  The  party  at  whose  instance  the  exami- 
nation is  had  should  begin  it  and  the  adverse  party 
may  then  cross-examine. 

The  parties  to  an  action  frequently  prepare  ques- 
tions and  cross- questions  which  are  settled  by  the 
Court  and  the  necessity  of  counsel  attending  the  ex- 
amination is  thus  avoided.  The  questions  and  cross- 
questions  so  settled  are  forwarded  to  the  notary  and 
he  personally  conducts  the  examination  by  asking  of 
the  witness  the  questions  and  cross-questions  and 
writing  the  respective  answers. 

After  the  writing  of  the  deposition  in  any  case  is 
completed  it  should  be  carefully  read  to  the  witness, 


20  AFFIDAVITS   AND   DEPOSITIONS. 

who  should  sign  it  after  making  any  corrections  he 
desires,  after  which  he  should  be  again  sworn  to  the 
effect  that  the  facts  therein  stated  are  true  according 
to  the  best  of  his  knowledge  and  belief.  The  notary's 
jurat,  including  seal,  should  then  be  placed  below 
the  witness'  signature.  If  the  parties  agree,  a  depo- 
sition may  be  taken  by  a  shorthand  writer  and  after- 
wards transcribed  and  the  transcript  may  then  be 
read  to  the  witness  and  corrected,  signed  and  sworn 
to  by  him. 

24.    In  what  cases  taken. 

Depositions  may  be  taken  in   the  following  cases. 

1.  When  the  witness  is  a  party  to  the  action  or 
proceeding,  or  an  officer  or  member  of  a  corporation 
which  is  a  party  to  the  action  or  proceed  ing,  or  a  per- 
son for  whose  immediate  benefit  the  action  or  pro- 
ceeding is  prosecuted  or  defended. 

2.  When  the  witness  resides  out  of  the  county  in 
which  his  testimony  is  to  be  used. 

3.  When  the  witness  is  about  to  leave  the  county 
where  the  action  is  to  be  tried,  and  will  probably  con- 
tinue absent  when  his  testimony  is  required. 

4.  When  the  witness,  otherwise  liable  to  attend 
the  trial,  is  nevertheless  too  infirm  to  attend. 

5.  When  the  testimony  is  required  upon  a  motion 
or  in  any  other  case  where  the  oral  examination  of 
the  witness  is  not  required. 

6.  When   the  witness   is  the  only   one  who  can 
establish  facts  or  a  fact  material  to  the  issue;    pro- 
vided that  the  deposition  of  such  witness  shall  not  be 
used  if  his  presence  can  be  procured  at  the  time  of 
the  trial  of  the  cause. 

7.  When  the  applicant  presents  a  verified  peti- 
tion to  the  Superior  Court. 

a.    That  he  expects  to  be  a  party  to  an  action  in 


AFFIDAVITS    AND    DEPOSITIONS.  21 

a  Court  in  this  State,  stating  the  names  of  the  parties 
whom  he  expects  will  be  adverse. 

b.  That  the  proof  of  some  fact  is  necessary  to 
perfect  the  title  to  property  in  which  he  is  interested 
or  to  establish  marriage,  descent,  heirship  or  any 
other  matter  which  may  hereafter  become  mater°al 
to  establish,  though  no  suit  may  at  the  time  be  antic- 
ipated, or,  if  anticipated,  he  may  not  know  the  parties 
to  such  suit. 

25.  The  Caption  and  Certificate. 

The  caption  and  certificate  should  be  substantially 
the  same  as  forms  numbered  X  and  XI  respectively. 

26.  Transmission  of. 

After  completing  a  deposition  it  should  be  placed 
in  an  envelope  or  wrapper,  sealed,  and  directed  to 
the  clerk  of  the  Court  in  which  the  action  is  pending 
or  to  such  person  as  the  parties,  in  writing,  may  agree 
upon:  it  should  be  delivered  by  the  notary  person- 
ally to  the  person  agreed  upon  or  forwarded  by  mail 
or  by  some  safe  private  opportunity. 

27.  When  may  be  Used. 

When  a  deposition  has  been  once  properly  taken 
it  may  be  read  by  either  party  in  any  stage  of  the 
same  action  or  proceeding,  or  in  any  other  action  be- 
tween the  same  parties  upon  the  same  subject,  and  is 
then  deemed  the  evidence  of  the  party  reading  it. 

28.  Fees. 

For  his  services  in  taking  depositions  the  notary 
may  collect  fifty  cents  for  each  witness  sworn,  thirty 
cents  for  each  folio  of  loo  words  and  one  dollar  for 
the  certificate.  The  party  at  whose  instance  the  dep- 
osition is  taken  should  pay  all  charges  of  the  notary. 


22         PRESENTING   AND   PROTESTING   PAP"  EPS, 

CHAPTER    V. 
PRESENTING  AXD  PROTESTING  COMMERCIAL  PAPER- 

29.  Duties  of  Notary  concerning. 

30.  Presentment  for  acceptance;  how  made, 

31.  Presentment  to  joint  drawee. 

32.  Effect  if  not  seasonably  presented, 

33.  Acceptance;  how  made, 

34.  Presentment  for  payment. 

35.  Presentment  for  payment;  place  of, 

36.  Protest;  what  is. 

37.  Protest;  applicable  to  what. 

38.  Form  of  protest. 

29.    Duties  of  Notary  Concerning, 

A  notary  public,  when  requested,  must  demand 
acceptance  and  payment  of  all  classes  of  bills  of  ex- 
change or  promissory  notes  and  protest  the  same. 

jo.     Presentment  for  Acceptance;  How  Made. 

At  any  time  before  a  bill  of  exchange  is  payable 
the  holder  may  present  it  to  the  drawee  for  accep- 
tance, and  if  acceptance  is  refused  the  bill  is  dishon- 
ored. 

The  holder  of  such  bill  of  exchange  may  request 
a  notary  public  to  present  the  same  for  acceptance. 

Presentment  for  acceptance  should  be  made  as 
near  as  may  be  in  the  following  manner: — • 

a.  The  bill  must  be  presented  by  the  holder  or 
his  agent. 

b.  It  must  be  presented  on  a  business  day  and 
within  reasonable  hours. 

c.  It  must  be  presented  to  the  drawee,  or  if  he  be 
absent  from  his  place  of  residence  or  business,  then 
to  some  person  having  charge  thereof  or  employed 
therein. 


PRKSfcVflN'.     AM)    I'ROTKSTING  i'APKRS.  2.} 

(1.  The  drawee  on  such  presentment  may  post- 
pone his  acceptance  or  refusal  until  the  next  day.  If 
the  drawee  have  no  place  of  business,  or  if  his  place 
of  business  or  residence  cannot  with  reasonable  dili- 
gence be  found,  presentment  for  payment  is  excused 
and  the  bill  may  be  protested  for  non-acceptance. 

j/.     Presentment  to  Joint  Drawee, 

Presentment  for  acceptance  to  one  of  several  joint 
drawees  and  refusal  by  him  dispenses  with  present- 
ment to  the  others. 

32.     Effect  if  not  Seasonably  Presented, 

When  a  bill  of  exchange  is  payable  at  a  specified 
time  after  sight,  the  drawer  and  endorsers  are  exon- 
erated if  it  is  not  presented  for  acceptance  within  ten 
days  after  the  tin  e  which  would  suffice,  with  ordin- 
ary diligence,  to  forward  it  for  acceptance  unless  pre-- 
sentment  is  excused* 

.,*?.     A&epiancc}  How  Made. 

An  acceptance  of  a  bill  must  be  made  in  writing 
by  the  drawee  or  by  an  acceptance  for  honor,  and 
may  be  made  by  the  acceptor  writing  his  name  across 
the' face  of  the  bill  with  or  without  other  words. 

j^h     Presentment  for  Payment ', 

If  a  bill  of  exchange  is  by  its  terms  payable  at  a 
particular  place  and  is  not  accepted  on  presentment 
it  must  be  presented  at  the  same  place  for  payment 
when  presentment  for  payment  is  necessary. 

J5.     Presentment  for  Payment;   Place  of. 

A  bill  of  exchange,  accepted,  payable  at  a  particj 
ular  place,  must  be  presented  at  that  place  for  pay- 
ment when  presentment  for  payment  is  necessary, 
mid  need  not  be  presented  elsewhere, 


24  PR ES BATING    AND  PROTESTING  PAPERS. 

36.  Protest;     What  is. 

A  protest  is  an  instrument  in  writing  giving  a  lit- 
eral copy  of  the  bill  of  exchange  with  all  that  is 
written  thereon,  or  annexing  the  original,  stating  the 
presentment  and  the  manner  in  which  it  was  made; 
the  presence  or  absence  of  the  drawee  or  acceptor,  as 
the  case  may  be;  the  refusal  to  accept  or  to  pay  or 
the  inability  of  the  drawee  to  give  a  binding  accep- 
tance; and  in  case  of  a  refusal,  the  reason  assigned, 
if  any. 

37.  Protest;  Applicable  to  What. 

A  protest  applies  to  all  negotiable  instruments 
such  as  bills  of  exchange,  promissory  notes,  checks, 
bank-notes,  certificates  of  deposit,  etc. 

38.  Form  of  Protest. 

For  the  proper  form  of  protest,  see  Form  No.  XII. 


DEEDS.  25 

CHAPTER  VI. 

DEEDS. 

39.  Kinds  of. 

40.  Definitions  and  difference. 

41.  Of  community  property. 

42.  Of  the  homestead. 

43.  Execution  of. 

44.  Delivery  and  re-delivery. 

45.  Certificate  of  acknowledgment. 

46.  Construction  of. 

39.     Kinds  of. 

There  are  various  kinds  of  deeds  in  ordinary  use, 
but  the  effect  to  be  given  to  any  deed  usually  de- 
pends on  its  character  as  being  a  grant,  a  quitclaim 
or  a  warranty  deed. 

40     Definitions  and  Difference. 

A  quitclaim  deed  conveys  to  the  grantee  all  of  the 
present  title  held  by  the  grantor.  If  the  grantor  be 
absolute  owner  of  the  property,  his  quitclaim  deed 
will  pass  the  whole  title  to  the  grantee. 

A  grant  deed  conveys  not  only  the  title  held  by 
the  grantor,  but  also  any  title  he  may  subsequently 
acquire  from  any  third  party.  By  a  grant  deed  the 
grantor  does  not  guarantee  or  undertake  that  he  has 
the  title  which  his  deed  purports  to  convey,  but 
whenever  in  a  conveyance  the  word  "grant"  is  used, 
the  law  implies  two  covenants  on  the  part  of  the 
grantor,  unless  such  covenants  are  expressly  ex- 
cluded by  the  terms  of  the  deed.  These  implied 
covenants  are,  first— that  previous  to  the  execution 
of  such  conveyance  the  grantor  has  not  conveyed  the 
same  estate  or  any  right,  title  or  interest  therein  to 
any  person  other  than  the  grantee;  second — that 
such  estate  is  at  the  time  of  the  execution  of  such 


.26  DEEDS. 

conveyance,  free  from  incumbrances  done,  made  or 
suffered  by  the  grantor  or  any  person  claiming  under 
him.  (Incumbrances  here  referred  to  idclude  taxes, 
assessments  and  all  liens  upon  real  property.)  Such 
covenants  extend  from  the  grantor  and  his  heirs  to 
the  grantee,  his  heirs  and  assigns.  (See  Sections 
1113  and  1114  Civil  Code.) 

A  warranty  deed  is  better  than  any  other  kind, 
for  by  it  the  grantor  warrants  that  at  the  date  of  the 
conveyance  he  owns  the  title  that  such  conveyance 
purports  to  convey,  and  he  usually  agrees  to  defend 
the  title  conveyed"  against  all  litigation  involving  such 
title.  If  title  based  upon  such  deed  fails  the  grantee 
has  his  action  against  the  grantor.  There  are  also 
conditional  deeds  and  escrows.  A  conditional  deed  is 
one  which  has  attached  to  it  some  condition  upon  the 
happening  of  which  the  title  vests  in  the  grantee. 
An  escrow  is  a  deed  placed  in  the  possession  of  some 
person  other  than  the  grantee  to  be  delivered  to  the 
grantee  upon  the  happening  of  some  specified  con- 
tingency or  event. 

41.     Of  Co  m  m  u n  ity  Property . 

Separate  property  consists  of  all  property  owned 
by  either  spouse  before  marriage,  and  also  all 
acquired  afterwards  by  gift,  bequest,  devise  or  des- 
cent, with  the  rents,  issues  and  profits  thereof.  All 
other  is  community  property. 

In  1891  the  Legislature  enacted  a  law  which  pro- 
vides that  the  husband  cannot  make  a  gift  of  the 
community  property  or  convey  the  same  without  a 
valuable  consideration  unless  the  wife  in  writing  con- 
sent thereto.  In  the  recent  case  of  Spreckels  vs. 
Spreckels  (decided  March  23d,  1897,)  the  Supreme 
Court  decided  that  this  act  is  unconstitutional  as  to 
all  community  property  acquired  prior  to  the  passage 
of  the  act,  and  strongly  intimates  that  it  is  unconsti- 
tutional in  its  entiretv.  If  the  act  be  conceded  to  be 


DKKDS,  27 

constitutional,  however  and  there  is,  in  fact,  a  valu- 
able consideration  paid  for  the  title  to  community 
property,  the  conveyance  need  be  signed  only  by  the 
husband,  but  as  the  question  of  consideration  is 
always  open  for  investigation  by  the  Courts,  regard- 
less of  the  recitals  of  the  deed,  buyers  of  real  prop- 
erty now  usually  require  the  wife's  signature.  The 
amendment  of  1891  referred  to  does  not  apply  to 
mortgages  of  the  community  property  (except  of  the 
homestead)  and  a  mortgage  executed  by  the  husband 
alone  is  good. 

Propeity  conveyed  to  a  married  woman  is  pre- 
sumptively her  separate  property,  and  this  presump- 
tion is  conclusive  in  favor  of  a  purchaser  or  incum- 
brancer  in  good  faith  and  for  a  valuable  considera- 
tion. 

jj.     Of  the  Homestead. 

The  homestead  of  a  married  person  cannot  be  con- 
veyed or  incumbered  unless  the  instrument  by  which 
it  is  conveyed  or  incumbered  is  both  executed  and 
acknowledged  by  and  both  husband  and  wife.  Note 
the  distinction  made  between  a  conveyance  or  incum- 
brance  of  a  homestead  and  that  of  any  other  prop- 
erty: The  deed  of  any  other  property  passes  title 
without  acknowledgment  but  in  the  case  of  a  home- 
stead the  acknowledgment  is  an  essential  part  of  the 
execution  itself,  and  without  acknowledgment  n:> 
title  passes. 

43.    Execution  of  Deeds. 

The  manner  of  taking  the  acknowledgment  and 
of  making  the  certificate  have  been  stated  hereto- 
fore (see  Chapter  III.) 

The  description  of  the  property  should  be  suffi- 
cient to  enable  it  to  be  located  and  identified  without 
considerable  trouble.  Tf  the  property  is  known  by 


28 


any  particular  name,  as  for  instance  "The  McKirihoii 
Ranch"  such  description  will  be  sufficient,  but  it  is 
advisable  and  more  satisfactory  to  give  a  more  par- 
ticular description. 

44.  Delivery  and  Re  -delivery. 

A  deed  does  not  take  effect  until  it  has  been  dej 
livered,  and  a  re-delivery  of  the  same  instrument  by 
the  grantee  to  the  grantor  will  not  pass  the  title  back 
to  the  grantor,  neither  will  a  destruction  of  the  paper, 
A  new  deed  must  be  executed  ffom  the  grantee  to 
the  grantor.  A  grant  duly  executed  and  delivered 
is  presumed  to  have  been  delivered  at  its  date.  It 
cannot  be  delivered  to  the  grantee  conditionally. 
There  may  be  a  constructive  delivery  to  a  strangef 
for  the  grantee  where  the  latter's  assent  is  shown  or 
hiay  be  presumed. 

45.  Certifitate  of  Acknowledgment* 

The  forms  of  certificates  of  acknowledgment 
found  at  the  end  of  this  book  are  all  correct  and  can 
be  implicitly  relied  upon. 

46.  Construction  of  Deeds  . 

Deeds  are  construed  or  interpreted  by  the  same 
rules  applicable  to  other  written  instruments.  The 
intention  of  the  parties  is  to  be  sought  and  adopted 
providing  the  express  terms  of  the  instrument  are 
hot  thereby  contradicted.  If  two  clauses  of  a  deed 
are  absolutely  irreconcilable  the  first  clause  will  pre- 
vail. 

The  recital  of  consideration  in  a  deed  is  hot  con- 
clusive. Any  legal  consideration  may  be  named  and 
in  case  of  dispute  the  true  consideration  may  be 
shown.  A  deed  reciting  no  consideration  is  as  effec- 
tive as  any  other. 


iiOM  ESTEADS.  ^M 

CHAPTER  VIL 

HOMESTEADS. 

47.  Kind  of. 

48.  How  Created  and  of  What  Consists^ 

49.  Who  May  Select. 

50.  From  What  Property  Selected. 

51.  Exempt  from  what  Claims* 

52.  Value,  Limit  of. 

53.  Proceedings  Where'  Value  Excessive'; 

54.  Liens  ofi. 

55.  How  Abandoned. 

56.  How  Conveyed  or  Incumbered; 

57.  Disposition  on  Death. 

47.  Kinds  of. 

There  are  two  kinds  of  homesteads,  one  taken  urj 
fonder  the  United  States  Land  Laws;  the  other  is 
what  is  commonly  known  as  a  State  Homestead. 

48.  flow  Created  and  of  what  Consists. 

A  State  Homestead  consists  of  the  dwelling  housg 
in  which  the  claimant  resides  and  the  land  on  which 
the  same  is  situated.  It  is  created  by  executing  and 
acknowledging  a  declaration  of  homestead  and  re- 
cording the  same  in  the  office  of  the  County  Recor- 
der of  the  County  in  which  the  land  is  located.  The 
declaration  must  contain  a  statement  showing  that 
the  person  making  it  is  the  head  of  a  family;  or  when 
the  declaration  is  made  by  the  wife,  showing  that  her 
husband  has  not  made  siich  declaration  and  that  she1 
therefore  makes  the  declaration  for  their  joint  benefit. 
Second:  A  statement  that  the  person  making  it  is 
residing  on  the  premises  and  claims  them  as  a  home- 
stead. Third:  A  description  of  the  premises,  and 
Fourth.  An  estimate  of  their  actual  cash  value, 
Which  must  not  exceed  five  thoussnd  dollars  where 


30  MOM  KSTKADS. 

the  declarant  is  the  head  of  a  family,  or  one  thousand 
dollars  when  the  declarant  is  not  the  head  of  a  fam- 
ily. 

49.  Who  may  Select, 

A  homestead  of  the  value  of  one  thousand  dollars 
may  be  selected  by  a  person  other  than  the  head  of 
a  family  by  the  execution,  acknowledging  arid  record- 
ing of  a  declaration  of  homestead  showing  that  he 
(or  she)  is  lesiding  on'the  premises  and  claims  them 
as  a  homestead:  a  description  of  the  premises  and 
an  estimate  of  their  actual  cash  value  which,  as 
stated  before,  is  limited  to  one  thousand  dollars. 

The  head  of  a  family  includes:  i.  The  husband 
when  the  claimant  is  a  married  person.  2.  Every 
person  who  has  residing  on  the  premises  with  him  or 
her  and  under  his  or  her  'care  and  maintenance 
either  his  or  her  minor  child  or  minor  grandchild 
or  the  minor  child  of  his  or  her  deceased  wife  or  hus- 
band, or  a  minor  brother  or  sister,  or  the  minor  child 
of  a  deceased  brother  or  sister.  3.  A  father,  mother, 
grandfather  or  grandmother.  4.  The  father, 
mother,  grandfather  or  grandmother  of  a  deceased 
husband  or  wife.  5.  An  unmarried  sister  or  any 
other  of  the  relatives  mentioned  who  have  attained 
the  age  of  majority  and  are  unable  to  take  care  of  or 
support  themselves. 

50.  From  What  Property  Selected. 

If  the  claimant  be  married,  the  homestead  may 
be  selected  from  the  community  property,  or  the  sep- 
arate property  of  the  husband,  or,  with  the  consent 
of  the  wife,  from  her  separate  property.  A  home- 
stead cannot  be  created  on  an  undivided  inteiest  in 
land.  An  unmarried  person  \vho  is  the  head  of  a 
family  may  select  from  any  of  his  property.  Mort- 
gaged property  may  be  homesteaded,  but  the  mort- 


HOMESTEADS.  31 

gage  will  be  unaffected  provided  it  is  recorded  prior 
to  the  recording  of  the  declaration  of  homestead. 
Separate  lots,  if  used  together,  may  be  included  in 
a  homestead. 

j/.     Exempt  From  What  Claims. 

The  homestead  is  completely  created  when  the 
declaration  is  filed  for  record,  and  then  becomes  ex- 
empt from  claims  of  every  kind  and  character,  ex- 
cept: i.  Judgments  obtained  before  the  declaration 
was  filed  for  record  and  which  constitute  liens  upon 
the  premises.  2.  Debts  secured  by  mechanics,  con- 
tractors, artisans,  architects,  builders,  laborers  of 
every  class,  material-mens'  or  vendors'  liens  upon  the 
premises.  3.  Debts  secured  by  mortgage  on  the 
premises  executed  and  acknowledged  by  husband 
and  wife,  or  by  an  unmarried  claimant.  4.  Debts 
secured  by  mortgage  on  the  premises  executed 
and  recorded  before  the  declaration  of  homestead 
was  filed  for  record.  A  declaration  of  homestead 
made  and  recorded  after  the  levy  of  an  attachment 
will  defeat  the  attachment.  A  crop  grown  on  a 
homestead  is  not  exempt  from  attachment.  A  United 
States  homestead  is  exempt  from  all  debts  created 
prior  to  the  issuance  of  the  patent,  but  is  not  exempt 
from  debts  created  afterwards. 

52.     Value,  Limit  of. 

The  homestead  of  the  head  of  a  family  must  not 
exceed  in  value  five  thousand  dollars,  and  that  of  any 
other  person  must  not  exceed  one  thousand  dollars. 
There  is  no  limit,  however,  as  to  quantity  of  land 
selected.  If  the  declaration  should  state  the  value 
incorrectly,  as  for  instance  f 7000.00,  it  would  still  b§ 
good  as  to  the  value  allowed  by  law. 


32  HOMESTEADS. 

33.     Proceedings  Where  Value  Excessive. 

If  the  value  of  a  homestead  in  fact  exceeds  that 
allowed  by  law,  the  holder  of  a  judgment  for  money 
may  levy  upon  the  homestead,  have  it  appraised  by 
appraisers  appointed  by  the  Court,  and  either  divide 
the  property,  setting  apart  to  the  homestead  claim- 
ant sufficient  to  equal  the  statutory  exemption  and 
applying  the  balance  to  the  satisfaction  of  the  judg- 
ment, or  if  it  would  not  be  advisable  to  divide  the 
property  it  may  be  all  sold  and  an  amount  of  money 
equal  to  the  statutory  exemption  paid  to  the  home- 
stead claimant,  in  whose  hands  it  is  exempt  to  the 
same  extent  as  a  homestead  but  only  for  the  period 
of  six  months. 

54.  Liens  on. 

The  homestead  is  liable  to  street  assessment,  me- 
chanics' and  laborers'  liens  the  same  as  other  prop- 
erty. 

55.  How  Abandoned. 

A  homestead  can  be  abandoned  only  by  a  declara- 
tion of  abandonment,  or  a  grant  thereof,  executed 
and  acknowledged.  I.  By  the  husband  and  wife,  if 
the  claimant  be  married.  2.  By  the  claimant,  if  un- 
married. A  declaration  of  abandonment  becomes 
effectual  when  filed  in  the  office  where  the  homestead 
is  recorded,  and  not  before.  Removal  from  the  prem- 
ises does  not  constitute  an  abandonment.  A  second 
declaration  while  the  first  homestead  exists,  would 
be  void. 

56.  How  Conveyed  or  Incumbered. 

The  homestead  of  a  married  person  can  not  be 
conveyed  or  incumbered  unless  the  instrument  by 


HOMESTEADS.  33 

which  it  is  conveyed  or  incunibered  is  executed  and 
acknowledged  by  both  husband  and  wife. 

57.     Disposition  on  Death. 

If  the  homestead  is  selected  from  the  community 
property  or  from  the  separate  property  of  the  person 
selecting  or  joining  in  the  selection  of  the  same,  it 
vests,  on  the  death  of  the  husband  or  wife,  absolutely 
in  the  survivor.  If  it  is  selected  from  the  separate 
property  of  one  who  does  not  consent  thereto,  it  vests 
in  the  heirs  of  such  non-consenting  owner  upon  his 
death,  but  may  be  set  apart  for  a  limited  period  to 
the  family. 


34  CHATTED    MORTGAGES. 

CHAPTER  VIII. 
CHATTJJI,   MORTGAGES. 

58.  Property  Subject  of. 

59.  Execution  and  Form  of. 

60      Second  Mortgage;  Penalty. 

61.  Crop  Mortgage;  Continuance  of . 

62.  Recording;  Necessity  For. 

58.    Property  Subject  of. 

As  between  the  immediate  parties  to  a  chattel 
mortgage,  any  personal  property  is  the  subject  of 
such  mortgage,  but  when  the  rights  of  creditors  or 
innocent  purchasers  or  incuinbrancers  are  concerned 
a  chattel  mortgage  is  invalid  if  it  be  made  upon  any 
kind  of  property  other  than  the  following: 

First — Locomotives,  engines  and  other  rolling- 
stock  of  a  railroad. 

Second — Steamboat  machinery,  the  machinery 
used  by  machinists,  foundrymen  and  mechanics. 

Third—  Steam  engines  and  boilers. 

Fourth — Mining  machinery. 

Fifth — Printing  presses  and  material. 

Sixth — Professional  libraries. 

Seventh — Instruments  of  surveyors,  physicians 
and  dentists. 

Eighth — Upholstery,  furniture  and  household 
goods. 

Ninth — Oil  paintings,  pictures  and  works  of  art. 

Tenth — All  growing  crops,  including  grapes  and 
fruit. 

Eleventh— Vessels  of  more  than  five  tons  burden. 

Twelfth — Instruments,  (negatives,  furniture  and 
fixtures  of  a  photograph  gallery. 


CHATTEL   MORTGAGES.  35 

Thirteenth — The  machinery,  casks,  pipes,  tubes, 
and  utensils  used  in  the  manufacture  or  storage  of 
wine,  fruit  brandy,  fruit  syrups,  or  sugar,  also  wines, 
fruit  brandy,  fruit  syrup,  or  sugar,  with  the  cooper- 
age in  which  the  same  are  contained. 

Fourteenth— Pianos  and  organs. 

Fifteenth — Iron  and  steel  safes. 

Sixteenth — Neat  cattle,  horses,  mules,  swine, 
sheep  and  goats,  and  the  inciease  thereof. 

Seventeenth — Harvesters,  threshing  outfits,  hay 
presses,  wagons,  farming  implements,  and  the  equip- 
ments of  a  livery  stable,  including  buggies,  carriages, 
harness,  robes. 

Eighteenth  —  Abstract  systems,  books,  maps, 
papers,  and  slips  of  searchers  of  records. 

Nineteenth — Raisins  and  dried  fruits,  cured  or  in 
process  of  being  cured.  Also,  all  boxes,  fruit-graders, 
drying-trays  and  fruit-ladders. 

Property  other  than  that  above  enumerated  may 
be  hypothecated,  but  in  order  to  make  the  transac- 
tion valid  as  to  creditors  there  must  be  a  delivery  of 
the  property,  and  it  is  then  called  a  pledge.  There 
is  no  distinction  between  an  ordinary  chattel  mort- 
gage ana  a  pledge  except  that  in  the  case  of  a  pledge 
the  possession  of  the  property  must  be  delivered  to 
the  pledgee,  while  in  the  case  of  a  chattel  mortgage 
the  possession  may  remain  with  the  owner  of  the 
property.  The  pledging  of  property  does  not  re- 
quire the  formal  execution  of  an  instrument  in  form 
a  chattel  mortgage,  It  may  be  accomplished  by  oral 
agreement  and  without  the  execution  of  any  paper 
whatever. 

59.    Execution  and  Form  oj. 

A  mortgage  of  personal  property  is  void  as  against 
creditors  of  the  mortgagor  and  subsequent  pur- 


36  CHATTEL   MORTGAGES. 

chasers  and  incumbrancers  of  the  property  in  good 
faith  and  for  value  unless:  i.  It  is  accompanied  by 
the  affidavit  of  all  the  parties  thereto  that  it  is  made 
in  good  faith  and  without  any  design  to  hinder,  delay 
or  defraud  creditors.  2.  It  is  acknowledged,  certified 
and  recorded  in  like  manner  as  grants  of  real  prop- 
erty. 

It  is  to  be  noted  here  that  the  recording  of  a  chat- 
tel mortgage  is  of  importance.  A  mortgage  of  real 
property,  if  not  recorded,  is  good  against  the  claims 
of  an  attaching  creditor  of  the  mortgagor,  but  not  so 
in  the  case  of  a  chattel  mortgage.  Even  it'  the 
attaching  creditor  has  personal  knowledge  of  the  ex- 
istence of  a  chattel  mortgage  against  the  property  he 
seeks  to  attach,  still,  if  the  mortgage  has  not  been  in 
fact  placed  on  record  the  creditor  may  levy  upon  and 
hold  the  property  as  against  the  holder  of  the  mort- 
gage. A  mortgage  of  live  stock  will  cover  the  in- 
crease if  expressly  so  provided,  but  not  otherwise. 

60.  Second  Mortgage;  Penalty. 

Where  personal  property  has  been  mortgaged  and 
the  mortgage  is  still  subsisting,  the  Penal, Code  makes 
it  larceny  for  the  mortgagor  to  sell,  transfer  or  fur- 
ther incumber  said  property  or  any  part  theieof,  or 
to  cause  the  same  to  be  sold,  transferred  or  further 
incumbered  to  a  third  party,  unless  said  third  party 
shall  be  first  informed  of  the  existence  of  the  prior 
mortgage  and  unless  the  prior  mortgagee  shall  be 
first  informed,  in  writing,  of  the  intended  sale,  trans- 
fer or  incumbrance  and  of  the  name,  and  place  of 
residence  of  the  party  to  whom  the  sale,  transfer  or 
incumbrance  is  to  be  made. 

61.  Crop  mortgage;  Continuance  of. 

The  oidinary  form  of   chattel  mortgage  may  be 


CHATTEL    MORTGAGES.  37 

used  for  a  crop  mortgage.  The  lien  of  a  mortgage  on 
a  growing  crop  continues  on  the  crop  after  severance, 
whether  remaining  in  its  original  state  or  converted 
into  an  >ther  product,  so  long  as  the  same  remains  on 
the  land  of  the  mortgagor.  A  fraudulent  removal  of 
the  crop  will  not  defeat  the  mortgage.  One  can 
mortgage  his  undivided  interest  in  a  crop,  and  a  crop 
mortgage  is  valid  if  made  before  the  crop  has  been 
planted, 

62.     Recording;  Necessity  for. 

As  between  the  parties,  it  is  not  necessary  that  a 
chattel  mortgage  be  recorded,  but  unless  recorded  it 
is  void  as  against  attaching  creditors  of  the  mort- 
gagor and  also  as  against  subsequent  purchasers  and 
incumbrancers  in  gojd  faith  and  for  value. 


CHAPTER  IX. 
WILLS. 

63.  Who  may  make. 

64.  Kinds  of.  . 

65.  Definitions. 

66.  Execution  of;  Witnesses. 

67.  Custody  of. 

68.  What  Property  Subject  of. 

69.  Cancellation  of,  and  Revocation. 

70.  Executor;  Attorney,  Interpretation  etc. 

63     Who  May  Make. 

Every  person  over  eighteen  years  of  age,  of 
sound  mind,  may  make  a  will.  A  married  woman 
may  dispose  of  her  separate  estate  by  will  without 
her  husband's  consent. 

64.  Kinds  of. 

There  are  three  kinds  of  wills: — Olographic,  nun- 
cupative and  attested. 

65.  Definitions. 

An  olographic  will  is  one  entirely  written,  dated 
and  signed  by  the  testator  himself.  It  is  subject  to 
no  other  form.  It  needs  no  witness  and  must  not  be 
made  on  paper  having  any  printing  or  writing  what- 
ever upon  it.  The  use  of  a  letter  sheet  having  the 
name  of  the  place  where  the  will  is  to  be  made 
printed  upon  it  will  invalidate  and  avoid  the  will. 

A  nuncupative  will  is  not  required  to  be  in  writing 
nor  to  be  attested  with  any  formalities,  but  the  estate 
bequeathed  must  not  exceed  in  value  $1000.00.  Such 
will  is  verbal;  two  witnesses  who  were  present  are  re- 
quired to  prove  it,  one  of  whom  must  have  been  asked 


WILLS.  39 

by  the  testator  to  bear  witness  that  it  was  his  will,  and 
the  deceased  must  have  been  at  the  time  in  military 
service  in  actual  peril  and  fear  of  death,  or  he  must 
have  been  in  expectation  of  immediate  death  from  an 
injury  received  the  same  day. 

An  attested  will  is  one  subscribed  by  the  testator 
in  the  presence  of  and  subscribed  by  two  witnesses. 

66.    Execution  of;  Witnesses. 

The  last  paragraph  indicates  the  manner  of  exe- 
cuting an  olographic  or  nuncupative  will. 

An  attested  will  must  be  executed  as  follows  and 
not  otherwise. 

i.  It  must  be  subscribed  at  the  end  thereof 
by  the  testator  himself,  or  some  person  in  his  pres- 
ence and  by  his  direction  must  subscribe  his  name 
thereto.  2.  The  subscription  must  be  made  in  the 
presence  of  the  attesting  witnesses  or  be  acknowl- 
edged by  the  testator  to  them  to  have  been  made  by 
him  or  by  his  authority.  3-  The  testator  must  at  the 
time  of  subscribing  or  acknowledging  the  same,  de- 
clare to  the  attesting  witnesses,  that  the  instrument 
is  his  will,  and  4.  There  must  be  two  attesting  wit- 
nesses, each  of  whom  must  sign  his  name  as  a  wit- 
ness at  the  end  of  the  will,  at  the  testator's  request 
and  in  his  presence. 

The  right  to  dispose  of  property  by  will  being 
purely  statutory,  the  statute  must  be  strictly  followed 
and  any  material  departure  will  be  fatal  to  the  val- 
idity of  a  will.  A  mistake  by  one  of  the  witnesses  in 
writing  his  name  will  avoid  the  will.  It  is  not  enough 
that  the  witnesses  may  know  that  the  document  is  a 
will;  the  testator  must  declare  to  them  that  it  is  his 
will,  but  is  not  essential  that  each  witness  should  be 
present  or  hear  the  declaration  made  to  the  other 
witness.  Any  devise  or  legacy  to  a  subscribing  wit- 


40 


ness  is  void  unless  there  are  two  other  competent  sub- 
scribing witnesses.  Creditors  of  the  testator  may  be 
witnesses  to  his  will.  A  codicil  to  a  will  should  be  ex- 
ecuted with  the  same  formalities  as  the  will  itself  and 
when  executed  it  has  the  effect  to  republish  the  will 
as  modified  by  the  codicil.  The  signature  of  the  tes- 
tator to  his  will  may  be  by  mark  or  cross  properly 
witnessed,  but  the  witnesses  must  be  able  to  write  and 
must  subscribe  their  names. 

67  .     Custody  of. 

A  nuncupative  will  must  be  offered  for  probate 
within  six  months  after  the  testamentary  words  were 
spoken,  but  the  words  or  the  substance  thereof  must 
have  been  committed  to  writing  within  thirty  days 
after  they  were  spoken.  An  olographic  or  attested 
will  may  remain  in  the  custody  of  the  testator  or  in 
that  of  any  other  person. 

68.  What  Property  Subject  of. 

A  married  woman  may  dispose  of  all  of  her  sepa- 
rate estate  by  will  without  the  consent  of  her  hus- 
band and  may  alter  or  revoke  her  will  in  like  manner 
as  if  she  were  single.  She  cannot  dispose  of  any 
share  of  the  community  property  if  the  husband  be 
still  living.  A  married  man  may  dispose,  by  will,  of 
one-half  of  the  community  property  only.  Any 
kind  of  property  may  be  disposed  of  by  will. 

69.  Cancellation  of  and  Revocation. 

A  written  will  may  be  revoked;  I.  By  a  written 
will,  or  other  writing  of  the  testator,  declaring  such 
revocation,  and  executed  with  precisely  the  same  for- 
malities as  a  will.  2.  By  being  burned,  torn,  can- 
celled, obliterated  ordestroyed  with  the  intent  and 
for  the  purpose  of  revoking  the  same,  by  the  testator 


W 1 1,1,8.  41 

himself  or  by  some  person  in  his  presence  and    by 
his  direction. 

When  a  will  is  cancelled  or  destroyed  by  any 
other  person  than  the  testator,  the  direction  of  the 
testator  and  the  fact  of  such  in j  ury  or  destruction 
must  be  proved  by  two  witnesses.  Where  a  will  is 
executed  in  duplicate  its  revocation  may  be  made  by 
revoking  one  of  the  duplicates.  A  prior  will  is  not 
revoked  by  a  subsequent  will  unless  the  latter  con- 
tains an  express  revocation,  or  provisions  wholly  in 
consistent  with  the  terms  of  the  former  will,  but  in 
other  cases  the  prior  will  remains  effectual  so  far  as 
consistent  with  the  provisions  of  the  subsequent  will. 

The  destruction,  cancellation  or  revocation  of  a 
second  will  does  not  revive  the  first  will  unless  it  ap- 
pears by  the  terms  of  such  revocation  that  it  was  the 
intention  to  revive  the  first  will,  or  unless  the  first 
will  is  duly  republished. 

If  after  making  a  will  the  testator  marries  and  his 
wife  survives  him,  the  will  is  revoked  unless  provision 
is  made  for  her  in  the  will  or  by  marriage  contract, 
or  unless  she  is  mentioned  in  the  will  in  such  way  as 
to  show  an  intention  not  to  provide  for  her. 

If  the  wife  does  not  survive  the  testator  the  same 
rule  applies  if  there  is  issue  of  such  marriage.  If 
the  wife  survive  and  the  issue  be  born  after  the  death 
of  the  testator  or  before  his  death,  the  same  rule  ap- 
plies as  to  the  issue.  The  revocation  of  a  will  re- 
vokes all  codicils.  It  is  not  necessary  to  provide  in  a 
will  that  a  child  shall  receive  a  dollar  or  any  other 
amount  in  order  that  the  will  stand.1  lit  is  sufficient 
that  the  child  be  mentioned  by  name  and  the  state- 
ment made  that  no  provision  is  made.  A  devise  of 
real  property  passes  all  the  title  owned  by  the  testa- 
tor at  his  decease.  A  devise  to  any  charitable,  or  be- 
nevolent society  or  to  any  person  in  trust  for  chari- 


42  WILLS. 

table  uses  must  not  exceed  one-third  of  the  estate  of 
any  one  who  has  legal  heirs,  taking  such  devises  col- 
lectively, and  any  such  disposition  of  property  can 
be  made  only  by  a  duly  executed  will  made  at"  least 
thirty  days  prior  to  the  testator's  death. 

70.     Executor;  Attorney,  Interpretation,  Etc. 

The  testator  may  nominate  any  person  selected  by 
himself  to  be  executor  or  executrix  of  his  will.  If 
he  does  not  nominate  an  executor  the  person  who 
would  be  entitled  to  administer  in  the  absence  of  a 
will  will  be  entitled  to  letters  of  administration.  A 
will  which  makes  no  disposition  of  property  what- 
ever, but  simply  appoints  an  executor  is  valid,  and 
such  person  would  be  entitled  to  administer  the  es- 
tate. The  testator  may  request  his  executor  to  em- 
ploy particular  attorneys  to  probate  the  will  but  such 
request  is  not  at  all  binding  upon  the  executor  and 
he  may  select  his  own  attorneys.  A  will  is  inter- 
preted the  same  as  other  written  documents,  but  if 
two  clauses  in  a  will  are  absolutely  irreconcilable  the 
last  will  prevail.  A  devise  of  the  residue  will  pass  all 
property  not  otherwise  effectually  devised  by  the  will. 
If  any  prior  attempted  disposition  of  property  be  for 
any  reason  invalid,  such  property  will  pass  to  the  one 
to  whom  the  residue  is  devised.  Legacies  are  due 
and  deliverable  at  the  expiration  of  one  year  after  the 
testator's  death,  and  annuities  commence  at  his  death 
unless  expressly  provided  otherwise.  An  authority 
to  an  executor  to  appoint  an  executor  is  void.  Before 
he  qualifies  the  executor  may  pay  funeral  charges 
and  take  necessary  measures  for  the  preservation  of 
the  estate.  Legacies  bear  interest  from  the  time 
they  become  due  except  legacies  for  maintenance  or 
to  the  testator's  widow  which  bear  interest  from  the 
testator's  decease. 


MORTGAGES   OF    REAL   PROPERTY.  43 

CHAPTER  X. 

MORTGAGES  OF  REAL  PROPERTY. 

71.  Definition  of;  How  Created. 

72.  Lien  of  Extends  to  What. 

73.  What  Interest  may  be  Mortgaged. 

74.  May  be  Assigned. 

75.  Release,  Limitations,  Redemption,  Etc. 

76.  Miscellaneous. 

77.    Definition  of;  How  Created. 

A  mortgage  is  a  contract  by  which  specific  prop- 
erty is  hypothecated  for  the  performance  of  an  act, 
without  the  necessity  of  a  change  of  possession. 
Every  transfer  of  an  interest  in  property,  other  than 
in  trust,  made  only  as  security  for  the  performance 
of  another  act  is  deemed  a  mortgage  If  it  is  of  per- 
sonal property  and  possession  is  delivered  it  is 
deemed  a  pledge.  A  mortgage  can  be  created,  re- 
newed or  extended  only  by  writing,  executed  with 
the  formalities  required  in  the  case  of  a  grant  of  real 
property. 

A  mortgage  is  usually  dependent  upon  a  pro- 
missory note  but  not  always.  Unless  there  is  con- 
tained in  the  mortgage  an  express  agreement  that 
the  maker  is  personally  bound,  or  unless  there  is  a 
note  accompanying  the  mortgage,  the  maker  of  the 
mortgage  is  not  personally  bound  to  perform  the  act 
for  which  the  mortgage  is  security,  and  in  case  of  a 
foreclosure  of  such  a  mortgage  the  maker  would  not 
be  liable  personally  for  any  deficiency  between  the 
amount  due  on  the  mortgage  and  the  amount  for 
which  the  property  was  sold.  If  there  is,  however,  a 
note  or  an  express  promise  on  the  part  of  the  maker 
he  will  be  personally  liable  for  any  deficiency  which 
appears  by  the  sheriff's  return  of  sale. 


44  MORTGAGES   OF   R  EAI<   PROPERTY. 


7^.     Lien  of  Extends  to  What. 

The  lien  of  a  mortgage  is  special  unless  other- 
wise expressly  agreed,  and  'is  independent  of  pos- 
session. A  mortgage  is  a  lien  upon  everything  that 
would  pass  by  a  grant  of  the  property.  The  mort- 
gagor has  a  right  to  use  the  mortgaged  property  in 
the  usual  way  and  is  entitled  to  the  rents,  issues  and 
profits  until  foreclosure,  but  he  may  not  do  any  act 
which  will  substantially  impair  the  mortgagee's 
security.  Any  title  which  the  mortgagor  acquires 
subsiquent  to  the  execution  of  the  mortgage  inures 
to  the  mortgagee  as  security  for  the  debt,  therefore, 
if  at  the  time  of  the  execution  of  a  mortgage  on  real 
property  the  mortgagor  does  not  own  it  and  he  sub- 
sequently gets  the  title  from  the  true  owner,  such 
title  will  be  deemed  security  for  the  debt. 

7j.      What  Interest  May  be  Mortgaged. 

Any  interest  in  real  property  which  is  capable  of 
being  transferred  may  be  mortgaged.  An  undivi- 
ded interest,  a  remainder,  reversion  or  contingent  re- 
mainder may  be  mortgaged. 

7^.     May  Be  Assigned. 

A  mortgage  may  be  assigned  and  the  assignment 
recorded,  but  if  there  be  a  note  as  the  basis  of  the 
mortgage  and  an  innocent  party  pays  value  for  the 
note,  his  claim  to  the  money  is  superior  to  the  holder 
of  the  assigned  mortgage. 

The  assignment  of  the  debt  secured  by  a  mort- 
gage carries  with  it  the  mortgage  without  any  formal 
assignment  of  the  mortgage,  and  the  mortgage  can 
be  enforced  by  the  holder  of  the  debt  or  note.  A  re- 
newal of  a  note  secured  by  mortgage  does  not  renew 


MORTGAGES  OF  'REAI,  PROPERTY.        45 

the  mortgage  and  if  the  security  is  to  be  preserved 
a  new  mortgage  must  be  executed. 

75.  Release,  Limitations,  Redemption,  Etc. 

A  mortgage  may  be  released  by  an  entry  on  the 
margin  of  the  record,  or  by  the  execution  and  record- 
ing of  a  regular  release  duly  acknowledged.  There 
may  be  a  partial  release  pf  the  mortgage.  The  stat- 
ute of  limitation  bars  a  note  or  mortgage  made  in  this 
State  four  years  from  the  date  it  becomes  due,  arid 
on  a  demand  note,  the  statute  commences  to  run  as 
soon  as  the  note  is  delivered.  Otherwise  if  payable 
a  certain  time  after  demand. 

Both  real  and  personal  property  may  be  included 
in  a  single  mortgage,  but  to  make  such  mortgage 
valid  so  far  as  the  personal  property  is  concerned, 
that  is  as  to  creditors,  it  should  be  executed  the  same 
as  a  chattel  mortgage. 

Within  one  year  from  a  sale  of  property  under 
foreclosure  proceedings  it  may  be  redeemed  by  pay- 
ment of  the  full  a  mount  due  together  with  one  per 
cent,  per  month  interest. 

76 .  Miscella  neous . 

Several  distinct  parcels  of  land  may  be  included 
in  one  mortgage. 

A  man  may  mortgage  his  property  to  secure  "an- 
other's debt.  Payment  of  the  debt  discharges  the 
mortgage. 

Mortgage  of  the  fee  operates  upon  a  subsequently 
acquired  title. 

Mortgage  is  barred  when  debt  is  barred. 

Foreclosure  proceedings  may  be  maintained  for  a 
default  in  the  payment  of  interest  or  a  default  in  the 


46  MORTGAGES   OF    REAL   PROPERTY. 

payment  of  any  installment  of  the  principal. 

An  action  on  the  debt  cannot  be  maintained  (that 
is  without  foreclosing  the  mortgage)  unless  without 
any  act  of  the  morta^ee  the  security  has  become 
valueless.  It  is  not  enough  that  prior  incumbrances 
make  the  security  worthless.  In  the  absence  of  an 
express  agreement  the  mortgagee  has  no  right  of 
possession  of  the  mortgaged  property  until  the  ex- 
piration of  one  year  from  th^  date  of  sheriff's  sale. 

In  case  there  is  no  redemption,  the  mortgagee  has 
his  right  of  action  against  the  mortgagor  for  the 
rents,  issues  and  profits  of  the  property  during  the 
year. 

A  foreclosure  suit  must  be  brought  in  the  county 
where  the  land  is  situated  and  counsel  fees  for  fore- 
closure are  allowed  only  when  so  provided  by  note 
or  mortgage. 

One  who  acquires  property  subject  to  a  mortgage 
does  not  thereby  assume  the  payment  of  it  and  is 
not  bound  personally  to  pay  it  unless  he  expressly 
agrees  to  do  so.  If  he  assumes  its  payment  he  will  be 
liable  for  any  deficiency  judgment  which  may  be 
rendered. 

In  order  to  uphold  a  transfer  'by  a  mortgagor  to  a 
mortgagee  of  mortgaged  property  in  satisfaction  of 
the  debt  it  must  appear  that  the  transaction  was  fair, 
free  from  undue  influence,  oppression  and  fraud  and 
that  the  price  was  adequate.  A  mortgage  to  secure 
future  advances  is  valid. 

The  mortgage  may  give  the  mortgagee  power  to 
sell,  but  he  may  still  bring  foreclosure  proceedings 
if  he  so  elects. 

A  deed,  absolute  in  form,  maybe  shown  to  have 
been  intended  as  security  for  money  and  therefore 
to  be  a  mortgage. 


MORTGAGES   OF   REAI,   PROPERTY.  47 

An  agreement  by  which  the  mortgagor  agrees  to 
pay  the  taxes  levied  on  the  mortgage  is  unconstitu- 
tional and  void,  and  the  making  of  such  an  agree- 
ment causes  the  mortgagee  to  forfeit  all  interest  on 
his  note  and  mortgage. 

One  who  has  actual  notice  of  a  prior  unrecorded 
mortgage  or  deed  is  not  protected  as  an  innocent 
purchaser.  If  he  gets  notice  prior  to  the  actual  pay- 
ment of  his  money  the  holder  of  the  unrecorded 
deed  will  hold  the  titie. 


48  NEGOTIABLE    INSTRUMENTS. 

CHAPTER  XL 

NEGOTIABLE    INSTRUMENTS. 

77.  Definition  of  and  Kinds. 

78.  Meaning  of  Negotiability. 

79.  Consideration;  Delivery.     Limitations. 

77.     Definition  and  Kinds. 

A  negotiable  instrument  is  a  written  promise  or 
request  for  the  payment  of  a  certain  sum  of  money 
to  order  or  bearer.  It  must  be  made  payable  of 
money  only  and  without  any  condition  not  certain  in 
fulfillment.  There  are  six  classes  of  negotiable  in- 
struments, namely:  Bills  of  Exchange,  Promissory 
Notes,  Bank  Notes,  Checks,  Bonds  and  Certificates 
of  Deposit. 

7&     Meaning  of  Negotiability. 

A  negotiable  instrument  is  good  for  its  face  in 
the  hands  of  any  innocent  holder.  A  written  prom- 
ise to  pay  a  certain  sum  of  money  continues  to  be 
negotiable  until  the  same  has  become  due.  It  then 
ceases  to  be  negotiable  and  any  person  acquir- 
ing it  thereafter  takes  it  subject  to  any  defenses 
which  could  have  been  urged  against  it  in  the  hands 
of  the  original  holder.  If  there  was  in  fact  no  con- 
sideration for  its  execution,  if  it  was  fraudulently 
procured  or  if  there  was  a  consideration  which  has 
failed,  either  would  be  a  defense  to  an  action  on  the 
promise  after  it  has  ceased  to  be  negotiable.  One 
who  obtains  it,  however,  before  it  is  due  takes  it  re- 
lieved of  any  inherent  defect  unless  he  had  in  fact 
actual  notice  of  such  defect,  so  would  one  acquiring 
it  from  the  latter. 


NEGOTIABLE    INSTRUMENTS.  4Q 

79.     Consideration;  Delivery.    Limitations. 

As  between  the  parties  to  a  written  promise  there 
must  have  been  a  valid  consideration  for  its  execu- 
tion, otherwise  it  is  invalid.  But  in  the  hands  of  an 
innocent  purchaser,  without  notice,  it  would  be  valid. 
The  promise  takes  effect  upon  its  delivery  and  not 
before,  and  is  barred  at  the  expiration  of  four  years 
if  made  in  this  state,  (two  years  if  made  elsewhere) 
after  it  becomes  due.  There  are  no  days  of  grace  in 
California.  A  negotiable  instrument  need  not  be 
dated  and  it  need  not  recite  "for  value  received."  If 
there  is  a  provision  in  a  promissory  note  that  an 
attorney's  fee  shall  be  allowed  in  case  of  action,  this 
renders  it  non-negotiable  and  subject  to  any  defense 
which  could  have  been  urged  against  the  original 
holder.  A  written  instrument  is  presumed  to  have 
been  based  upon  a  consideration. 

Every  signer  upon  the  face  of  a  promissory  note 
is  liable  as  a  maker.  A  bank  note  remains  negotiable 
after  it  has  been  paid  by  the  maker.  A  lost  note 
may  be  sued  on  just  the  same  as  an  existing  one. 


50  LANDLORD  AND  TENANT, 

CHAPTER  XII. 

I,ANDI,ORD    AND   TENANT. 

80.  Relation  of. 

81.  Rights  of  the  Parties. 

82.  Term  of  Hiring. 

83.  Rent,  how  Payable. 

84.  Termination  of  Tenancy. 

85.  Notice  to  Quit  and  Ousting. 

80.  Relation  of. 

The  relation  of  landlord  and  tenant  does  not  ad- 
mit of  dispute  by  the  tenant  of  the  landlord's  title  to 
the  premises  except  where  the  tenant  is  already  in 
possession  of  the  premises  at  the  time  of  the  creation 
of  the  tenancy  and  has  been  induced  to  accept  a 
lease  by  fraudulent  representations  of  the  landlord. 

81.  Rights  of  the  Parties. 

The  lessor  of  a  building  intended  for  the  occupa- 
tion of  human  beings,  in  the  absence  of  an  agree- 
ment to  the  contrary,  must  put  it  into  a  condition  fit 
for  such  occupation,  and  repair  all  subsequent  dilap- 
idations which  render  it  untenantable  except  where 
such  deteriorations  or  injuries  are  occasioned  by  the 
ordinary  negligence  of  the  tenant.  If,  after  notice 
to  the  landlord  to  repair  dilapidations  which  the 
laws  require  him  to  repair  he  neglects  for  a  reasona- 
ble time  to  comply,  the  lessee,  if  such  repairs  do  not 
require  an  expenditure  of  more  than  one  month's 
rent,  may  repair  the  same  himself  and  deduct  the 
expenses  from  the  rent,  or  he  may  vacate  the  prem- 
ises and  be  discharged  from  further  payment  of 
rent  or  performance  of  other  conditions  of  his  lease. 

It  is  the  duty  of  a  tenant  to  notify  his  landlord  of 


AND    TENANT.  51 

any   proceedings   affecting    the   possessions   of    the 
property. 

82.  Term  of  Hiring. 

The  term  of  hiring  of  real  property  is  left  to  the 
agreement  of  the  parties.  For  agricultural  purposes 
property  may  be  leased  for  not  exceeding  ten  years 
and  town  or  city  property  not  exceeding  twenty  years. 
A  lease  of  real  property,  other  than  lodgings  and 
dwelling  houses,  in  places  where  there  is  no  usage 
to  the  contrary,  is,  in  the  absence  of  agreement,  pre- 
sumed to  be  for  one  year  from  its  commencement. 

A  hiring  of  lodgings  or  a  dwelling  house,  where 
there  is  no  specified  term,  is  presumed  to  be  for  such 
length  of  time  as  the  parties  adopt  for  the  estimation 
of  rent.  For  instance  a  hiring  at  a  monthly  rate  is 
presumed  to  be  for  one  month;  a  hiring  at  a 
weekly  rate  is  presumed  to  be  for  one  wreek.  In  the 
absence  of  any  agreement  respecting  either  the 
length  of  time  or  the  rent  the  hiring  is  presumed  to 
be  monthly.  If  a  lessee  of  real  property  remains  in 
possession  thereof  after  the  expiration  of  the  hiring 
and  the  lessor  accepts  rent  from  him,  the  parties  are 
presumed  to  have  renewed  the  hiring  on  the  same 
terms  and  for  the  same  time,  not  exceeding  one 
month,  when  the  rent  is  payable,  not  in  any  case  on§ 
year. 

83.  Rent;  How  Payable. 

When  there  is  no  usage  or  contract  to  the  con- 
trary rents  are  payable  at  the  termination  of  the 
holding  when  it  does  not  exceed  one  year.  If  the 
holding  is  by  the  day,  week,  month,  quarter  or  year, 
rent  is  payable  at  the  termination  of  the  respective 
periods  as  it  successively  becomes  due. 


52  LANDLORD   AND   TENANT. 


84.  Termination  of  Tenancy. 

Where  a  tenancy  is  for  a  fixed  and  determinate 
time,  as  for  instance  for  a  particular  month  or  year, 
the  tenancy  is  terminated  by  the  mere  lapse  of  the 
time  and  no  notice  is  required  to  determine  the  ten- 
ancy. 

If,  however,  the  term  is  for  an  indefinite  time,  as, 
for  instance  a  renting  at  a  monthly  rate,  there  being 
no  agreement  as  to  how  long  the  term  -shall  be,  such 
a  tenant  is  known  as  a  tenant  at  will  and  in  order  to 
terminate  his  tenancy  there  must  be  given  to  him  a 
thirty  days'  notice  in  writing  in  terms,  terminating 
the  tenancy. 

85.  Notice  to  Quit  and  Ousting. 

Where  a  tenancy  has  terminated  by  mere  lapse 
of  time  where  the  tenancy  was  for  a  fixed  period  an 
action  to  oust  may  be  based  upon  a  three  days'  no- 
tice to  quit  and  surrender  the  possession.  In  cases 
of  a  tenancy  at  will  as  above  illustrated  there  must 
be  a  thirty  days'  notice  to  qnit  and  then  a  three  days' 
notice  to  quit. 


BILL,   OF   SALE.  53 

CHAPTER  XIII. 
Bllyl,    OF   SALE. 

86.  Definition. 

87.  Nature  of. 

88.  Validity   and  Requisites. 

86.  Definition. 

By  a  bill  of  sale  is  usually  understood  a  contract 
by  which  personal  property  is  sold  and  transferred. 
It  may  be  oral  or  in  writing,  and  recording  a  bill  of 
sale  imparts  no  additional  validity  to  it. 

87.  Nature  of. 

The  subject  of  a  sale  must  be  property  the  title 
'to  which  can  be  immediately  transferred  from  seller 
to  buyer.  One  who  sells  personal  property,  whether 
it  was  in  his  possession  at  the  time  of  sale  or  not, 
must  put  it  into  a  condition  fit  for  delivery  and  de- 
liver it  to  the  buyer  within  a  reasonable  time  after 
demand,  unless  he  has  a  lien  thereon. 

Personal  property  sold  is  deliverable  at  the  place 
where  it  is  at  the  time  of  sale  or  agreement  to  sell;  if 
it  is  not  yet  in  existence  it  is  deliverable  at  the  place 
where  it  is  produced.  Transportation  is  at  the  buy- 
er's risk  and  expense.  The  title  to  personal  property, 
sold  or  exchanged,  passes  to  the  buyer  whenever  the 
parties  agree  upon  a  present  transfer  and  the  thing 
itself  is  identified,  whether  it  is  separated  from  other 
things  or  not. 

88.  Validity  and  Requisites. 

As  above  indicated  a  bill  of  sale  of  personal  prop- 
erty may  be  either  oral  or  in  writing.  As  between 
the  parties  to  a  bill  of  sale  there  need  be  no  delivery 


54  BII.I,   OF   SAI,E. 

of  the  possession  of  the  property  sold,  but  concern- 
ing the  rights  of  attaching  creditors,  or  of  purchasers 
without  notice,  from  the  seller  while  the  seller  re- 
mains  in  possession  of  the  property  it  is  absolutely 
indispensable  to  the  validity  of  the  sale  that  there 
should  be  an  immediate  and  continued  change  of 
the  possession  of  the  property.  The  change  of  pos- 
session required  varies  with  the  class  of  propeity 
sold.  It  is  required  that  the  change  shall  be  such 
as  would  be  ordinarily  made  of  the  kind  of  property 
which  is  the  subject  of  sale,  and  it  will  depend  alto- 
gether upon  the  character  of  the  property  and  its 
situation  in  determining  what  will  be  a  sufficient 
immediate  delivery  and  a  continued  change  of  pos- 
session. The  change  should  be  such  as  would  be 
likely  to  notify  the  public  that  there  has  been  a  sale 
of  the  property.  Acknowledging  and  recording  the 
bill  of  sale  will  not  add  to  its  validity  in  the  slightest 
degree.  Property  may  be  bought  and  then  leased 
to  the  seller,  but  there  should  still  be  a  period  of 
time  when  the  property  passed  in  possession  from 
the  seller  to  the  buyer. 

One  who  sells  the  good  will  of  a  business  may 
agree  with  the  buyer  to  refrain  from  carrying  on  a 
similar  business  within  a  specified  county,  city  or 
part  thereof  so  long  as  the  buyer  or  any  person  de- 
riving title  to  the  good  will  from  him  carries  on  a 
like  business  therein.  If  any  limits  of  territory  ex- 
ceed this  the  agreement  may  still  be  enforced  as  far 
as  it  is  legal.  No  other  restraint  of  trade  or  business 
is  permitted  in  this  state. 


PARTNERSHIP.  55 

CHAPTER    XIV. 

PARTNERSHIP. 

89.  Definition  and  Nature  of. 

90.  The  Property  of. 

91.  Authority  Denied  Partner. 

92.  Profits  and  Losses,  How  Shared. 

93.  Liability  to  Third  Persons. 

94.  Dissolution. 

89.    Definition  and  Nature  of. 

Partnership  is  the  association  of  two  or  more  per 
sons  for  the  purpose  of  carrying  on  business  to- 
gether and  dividing  its  profits  between  them.  A 
partnership  can  be  formed  only  by  the  consent  of 
all  the  parties  thereto  and  therefore  a  new  partner 
can  not  be  admitted  into  the  partnership  without  the 
consent  of  every  existing  member  thereof. 

go.     The  Property  of. 

The  property  of  a  partnership  consists  of  all  that 
is  contributed  to  the  common  stock  at  the  formation 
of  the  partnership  and  all  that  is  subsequently  ac- 
quired thereby.  The  interest  of  each  partner  ex- 
tends to  every  portion  of  the  partnership  property, 
and  any  property,  real  or  personal,  which  is  acquired 
with  partnership  funds  is  presumed  to  be  partner- 
ship property. 

gi.     Authority  Denied  Partner. 

A  partner  as  such,  has  not  authority  to  do  any  of 
the  following  acts  unless  his  copartners  have  wholly 
abandoned  the  business  to  him  or  are  incapable  of 
acting. 

i.  To  make  an  assignment  of  the  partnership 
property  or  any  portion  thereof  to  a  creditor  or  to  a 


56  PARTNERSHIP. 

third  person  in  trust  for  the  benefit  of  a  creditor  or 
of  all  creditors. 

2.  To  dispose  of  the  good  will  of  the  business. 

3.  To  dispose  of  the  whole   of   the  partnership 
property  at  once,  unless   it   consists  entirely  of  mer- 
chandise. 

4.  To  do  any  act  which  would  make  it  impossible 
to  carry  on  the  ordinary    business  of   the   partner- 
ship. 

5.  To  confess  a  judgment. 

6      To  submit  a  partnership  claim  to  arbitration. 

7.  To  do  any  other  act  which  is  not  necessary  to 
the  carrying  on  of  the  partnership  business  in  the 
ordinary  manner. 

92,     Profits  and  Losses;  How  Shared. 

All  profits  made  by  a  general  partner  in  the 
course  of  any  business  usually  carried  on  by  the 
partnership  belong  to  the  firm.  In  the  absence  of 
any  agreement  on  the  subject  the  shares  of  partners 
in  profits  or  losses  are  equal,  and  an  agreement  to 
divide  the  profits  of  a  business  implies  an  agreement 
for  a  corresponding  division  of  the  losses  unless  it  is 
otherwise  expressly  stipulated.  A  partner  is  not 
entitled  to  any  compensation  for  services  rendered 
by  him  to  the  partnership,  unless  there  be  a  special 
agreement  to  the  contrary. 

pj.     Liability  to  Third  Persons. 

Every  general  partner  is  liable  to  third  persons 
for  all  the  obligations  of  the  partnership,  jointly  with 
his  copartners.  Any  one  permitting  himself  to  be 
represented  as  a  partner  is  liable  to  third  persons 
who  on  the  faith  of  such  representations  have  given 
credit  to  the  partnership. 


PARTNERSHIP.  $7 


Formation  of. 

If  a  partnership  proposes  to  carry  on  business 
under  a  fictitious  name,  or  a  name  not  showing  the 
names  of  the  partners  it  is  required  that  a  certificate 
showing  the  proposed  name,  the  general  nature  of 
the  business  to  be  transacted,  the  names  of  all  part- 
ners  and  their  residences,  the  amount  of  capital  con- 
tributed  by  each  and  the  time  of  commencement 
and  ending  of  such  partnership  (which  certificate 
must  be  acknowledged  by  all  the  partners)  be  filed 
in  the  office  of  the  county  clerk  and  recorder  of  the 
county  in  which  the  principal  place  of  business  is  to 
be  located.  Otherwise  the  partnership  can  not  bring 
suit  upon  any  of  its  contracts.  If  no  certificate  is 
filed  any  claim  or  contract  may  still  be  assigned  to  a 
third  peison  and  a  suit  maintained  in  his  name.  The 
firm  names  "Smith  &  Jones"  or  "McKinnon  &  Mul- 
cahy"  are  not  fictitious  within  the  meaning  of  the 
above  provision,  if  such  are  the  real  names  of  the 
partners 

94*    Dissolution. 

If  no  term  is  prescribed  by  agreement  for  its 
duration  a  general  partnership  continues  until  dis- 
solved by  a  partner  or  by  operation  of  law. 

It  may  be  dissolved,  ist.  By  lapse  of  the  time  pre- 
scribed  by  agreement  for  its  duration.  2d.  By  the 
expressed  will  of  any  partner  if  there  is  no  such 
agreement.  3d.  By  the  death  of  a  partner.  4th.  By 
the  transfer  by  one  partner  of  his  interest  to  one  not 
a  partner.  5.  By  war  or  tbe  prohibition  of  commer- 
cial intercourse  between  the  country  in  which  one 
partner  resides  and  that  in  which  the  other  resides, 
6th.  By  a  judgment  of  dissolution. 


58  MJSCKLLAXKOUS. 

MISCELLANEOUS. 

The  time  in  which  any  act  provided  by  law  is  to 
be  done  is  computed  by  excluding  the  first  day  and 
including  the  last,  unless  the  last  day  is  a  holiday, 
and  then  it  is  also  excluded.  Intervening  Sundays 
and  holidays  should  all  be  counted. 

Every  person  who  has  actual  notice  of  circum- 
stances sufficient  to  put  a  prudent  man  upon  inquiry 
as  to  a  particular  fact,  has  constructive  notice  of  the 
fact  itself  in  all  cases  in  which,  by  prosecuting  such 
inquiry,  he  might  have  learned  such  fact. 

A  minor  can  not  give  a  delegation  of  power,  nor 
under  the  age  of  eighteen  make  a  contract  relating 
to  real  property  or  any  interest  therein,  or  relating  to 
any  personal  property  not  in  his  immediate  possession 
or  control. 

A  person  entirely  without  understanding  has  no 
power  to  make  a  contract  of  any  kind,  but  he  is 
liable  for  the  reasonable  value  of  things  furnished  to 
him  necessary  for  his  support  or  the  support  of  his 
family. 

A  conveyance  or  other  contract  of  a  person  of  un- 
sound mind  but  not  entirely  without  understanding, 
made  before  his  incapacity  has  been  judicially  de- 
termined, may  be  rescinded  by  him. 

A  minor  or  person  of  unsound  mind,  of  whatever 
degree,  is  civilly  liable  for  a  wrong  done  by  him,  but 
is  not  liable  for  exemplary  damages  unless  at  the 
time  of  the  act  he  was  capable  of  knowing  that  it 
was  wrongful. 

Agreements  for  the  sale  and  purchase  of  real 
property  ought  always  to  be  in  writing.  An  oral 
agreement  to  buy  or  sell  real  property  can  not  be 
enforced,  even  where  part  payment  has  been  made, 
except  in  peculiar  cases  where  a  refusal  to  carry  out 


MISCELLANEOUS.  59 

the  agreement  would  work  a  fraud  on  the  one  not  in 
default,  as  for  instance,  where  the  buyer  has  entered 
into  possession  of  the  premises  and  made  valuable 
improvements.  The  writing  must  be  certain  as  to 
persons,  price  and  subject  matter.  The  description 
of  the  property  should  be  accurate. 

One  who  hasbeen  in  the  undisputed  possession  of 
real  property  for  five  years  and  who  has  paid  the 
taxes  assessed  thereon  for  that  length  of  time  ac- 
quires title  to  the  property.  If  no  taxes  have  been 
assessed  on  the  property  the  adverse  possessor  never- 
theless acquires  the  title.  The  law  requires  only  that 
he  should  pay  the  taxes  levied. 

Where  the  statute  of  limitations  has  run  against  a 
claim,  an  action  may  still  be  maintained  thereon,  and 
unless  the  defendant  presents  the  defense  of  the 
statute  judgment  may  be  recovered.  If  he  does  not 
answer  the  complaint  a  default  judgment  on  an  out- 
lawed claim  is  valid  against  the  defendant.  Where 
a  claim  on  contract  has  outlawed  the  bar  of  the  stat- 
ute cannot  be  removed  and  the  debt  revived  except 
by  an  acknowledgment  of  the  indebtedness  by  the 
debtor  in  writing  signed  by  him. 

Where  a  debt   has  been   paid  by  a  discharge  in 
insolvency  it  may  be  revived  by  a  subsequent  prom- 
ise of  the  insolvent  to  -pay  it,  and  such  promise  need  . 
not  be  in  writing. 

Wherever,  by  law,  a  contract  is  required  to  be  in 
writing,  it  can  not  be  executed  by  an  agent  unless 
his  authority  as  agent  is  also  in  writing. 

Where  the  law  makes  a  presumption  conclusive, 
courts  must  follow  it.  If  it  is  not  made  conclusive 
the  courts  must  still  be  bound  by  it  unless  it  is  over- 
come by  proof.  The  following  are  conclusive  pre- 
sumptions; 

I.     A  malicious  and  guilty  intent,  from  the  delib- 


60  MISCELLANEOUS. 

crate  commission  of  an  unlawful  act,  for  the  purpose 
of  injuring  another; 

2.  The  truth  of  the  facts  recited,  from  the  recital 
in  a  written  instrument   between   the  parties  thereto 
or  their  successors  in  interest  by  a  subsequent  title, 
but  this  rule  does   not   apply  to  the  recital  of  a  con- 
sideration ; 

3.  Whenever  a  party  has,  by  his  own  declaration, 
act,   or  omission,  intentionally  and    deliberately  led 
another  to  believe  a  particular  thing  true,  and  to  act 
upon  such  belief,  he  cannot,  in  any  litigation  arising 
out  of  such  declaration,  act,  or  omission,  be  permitted 
to  falsify  it; 

4.  A  tenant  is  not  permitted  to  deny  the  title  of 
his  landlord  at  the  time  of  the  commencement  of  the 
relation ; 

5.  The  issue  of  a  wife  cohabiting   with    her  hus- 
band, who  is  not  impotent,  is  indisputably  presumed 
to  be  legitimate; 

6.  The  judgment  or  order  of  a  court,  when  de- 
clared   by   law   to    be    conclusive;  but    such    judg- 
ment 01  order  must  be   alleged    in   the   pleadings  if 
there  be  an  opportunity  to  do  so;  if  there  be  no  such 
opportunity,  the  judgment  or  order  may  be  used  as 
evidence ; 

7.  Any   other  presumption  which,  by  statute,  is 
expressly  made  conclusive. 

All  other  presumptions  are  satisfactory,  if  uucon- 
tradicted.  They  are  denominated  disputable  pre- 
sumptions, and  may  be  controverted  by  other  evi- 
dence. The  following  are  of  that  kind: 

1.  That  a  person  is  innocent  of  crime  or  wrong; 

2.  That  an  unlawful   act   was   done  with  an  un- 
lawful intent; 


MISCELLANEOUS.  6l 

3.  That   a   person    intends   the   ordinary    conse- 
quence of  his  voluntary  act; 

4.  That  a  person  takes   ordinary  care  of  his  own 
concerns; 

5.  That   evidence  willfully  suppressed  would  be 
adverse  if  produced; 

6.  That  higher  evidence  would  be  adverse,  from 
inferior  being  produced; 

7.  That  money  paid   by  one  to  another  was  due 
to  the  latter; 

8.  That  a  thing   delivered  by  one  to  another  be- 
longed to  the  latter; 

9.  That  an  obligation  delivered  up  to  the  debtor 
has  been  paid; 

10.  That  former  rent  or  installments  have  been 
paid  when  a  receipt  for  later  is  produced; 

TI.  That  things  which  a  person  possesses  are 
owned  by  him. 

12.  That  a  person  is  the   owner  of  property  from 
exercising  acts  of  ownership  over  it,  or  from  common 
reputation  of  his  ownership; 

13.  That   a   person    in   possession   of  an  order  on 
himself  for  the  payment  of    money,  or  delivery  of  a 
thing,  has   paid  the   money   or  delivered  the  thing 
accordingly; 

14.  That  a  person  acting   in   a   public  office  was 
regularly  appointed  to  it; 

15.  That    official   duty    has   been   regularly  per- 
formed ; 

16.  That  a  court  or  judge,  acting  as  such,  whether 
in  this  state  or  any  other  state  or  country,  was  acting 
in  the  lawful  exercise  of  his  jurisdiction; 

17.  That  a  judicial  record,  when   not  conclusive, 


62  MISCELLANEOUS. 

<lnes  still  correctly  determine  or  set  forth  the  rights 
of  the  parties. 

18.  That   all   matters  within    an    issue   were   laid 
before  the   jury  and    passed  upon   by  them;  and  in 
like  manner,  that  all  matters  within  a  submission  to 
arbitration  were  laid  before  the  arbitrators  and  passed 
upon  by  them  ; 

19.  That  private  transactions  have  been   fair  and 
regular; 

20.  That  the  ordinary  course  of  business  has  been 
followed; 

21.  That  a  promissory  note  or  bill  of  exchange  was 
given  or  indorsed  for  a  sufficient  consideration: 

22.  That  an  indorsement  of   a   negotiable  promis- 
sory note  or  bill  of  exchange  was   made   at   the  time 
and  place  of  making  the  note  or  bill; 

23.  That  a  writing  is  truly  dated  \ 

24.  That  a  letter  duly  directed  and  mailed  was  re- 
ceived in  the  regular  course  of  the  mail; 

25.  Identity  of  persons  from  identity  of  name; 

26.  That  a  person  not  heard  from  in  seven  years 
is  dead ; 

27.  That  acquiescence  followed  from  a  belief  that 
the  thing  acquiesced  in  was  conformable  to  the  right 
or  fact; 

28.  That  things  have  happened  according  to  the 
ordinary  course  of  nature  and  the  ordinary  habits  of 
life; 

29.  That   persons   acting   as   copartners  have  en- 
tered into  a  contract  of  copartnership; 

30.  That  a  man  and  woman  deporting  themselves 
as  husband  and  wife  have  entered  into  a  lawful  con- 
tract of  marriage; 

31.  That  a  child   born   in  lawful  wedlock,   there 


MISCELLANEOUS.  63 

being   no   divorce  from  bed  and  board,  is  legitimate; 

32.  That  a  thing  once   proved   to  exist  continues 
as  long  as  is  usual  with  things  of  that  nature; 

33.  That  the  law  has  been  obeyed; 

34.  That  a  document  or  writing  more  than  thirty 
years  old  is  genuine,  when   the   same  has  been  since 
generally  acted  upon  as  genuine,  by  persons  having 
an  interest  in  the  question,  and  its  custody  has  been 
satisfactorily  explained; 

35.  That  a  printed  and  published   book,  purport- 
ing to  be  printed  or   published  by  public  authority, 
was  so  printed  or  published; 

36.  That  a  piinted   and  published  book,  purport- 
ing   to  contain    reports   of    cases   adjudged   in   the 
tribunals  of  the  state  or   country  where  the  book  is 
published,  contains  correct  reports  of  such  cases; 

37.  That  a  trustee  or  other  person,  whose  duty  it 
was   to  convey   real   property  to  a  particular  person, 
has  actually  convejed  to  him,  when  such  presump- 
tion is  necessary  to  perfect  the  title  of  such  person  or 
his  successor  in  interest; 

38.  The   uninterrupted  use  by  the  public  of  land 
for  a  burial  ground,  for  five   years,  with  the  consent 
of  the  owner,  and  without  a  reservation  of  his  rights, 
is  presumptive  evidence  of  his  intention  to  dedicate 
it  to  the  public  for  that  purpose; 

39.  That  there   was  a  good  and  sufficient  consid- 
eration for  a  written  contract; 

40.  When  two  persons  perish  in  the  same  calamity, 
such  as  a  wreck,  a  battle,  or  a  conflagration,  and  it  is 
not  shown  who  died    first,  and  there  are  no  particular 
circumstances  from  which   it   can   be  inferred,  sur- 
vivorship is  presumed  from  the  probabilities  resulting 
from   the   strength,  age,  and   sex,  according  to  the 
following  rules: 


64  MISCELLANEOUS. 

First.  If  both  of  those  who  have  perished  were 
under  the  age  of  fifteen  years,  the  older  is  presumed 
to  have  survived; 

Second.  If  both  were  above  the  age  of  sixty,  the 
younger  is  presumed  to  have  survived; 

Third.  If  one  be  under  fifteen  and  the  other 
above  sixty,  the  former  is  presumed  to  have  sur- 
vived; 

Fourth.  If  both  be  over  fifteen  and  under  sixty, 
and  the  sexes  be  different,  the  male  is  presumed  to 
have  survived;  if  the  sexes  be  the  same,  then  the 
elder. 

Fifth.  If  one  be  under  fifteen  or  over  sixty,  and 
the  other  between  those  ages,  the  latter  is  presumed 
to  have  survived. 


65 


FEE  BILL. 


The  following  is  a  copy  of  the  fee  bill  now  in  force 
in  all  of  the  counties  of  the  state.  It  was  adopted 
by  the  legislature  of  1895.  The  supreme  court  has 
declared  three  of  its  provisions  to  be  unconstitu- 
tional. The  first  is  the  provision  requiring  one  dollar 
for  each  thousand  dollars  of  the  appraised  value  of 
an  estate  to  be  paid  to  the  county  clerk,  and  the 
second  is  the  provision  limiting  constable's  fees  to 
not  exceed  one  hundred  dollars  per  month  in  crim- 
inal cases;  the  third  is  the  provision  that  permits  the 
supervisors  to  reject  claims  of  constables  and  justices 
unless  the  issuance  of  the  warrant  was  approved  by 
the  district  attorney. 

SECTION  I.  The  following  county,  township, 
and  other  officers  shall  charge  and  collect  the  follow- 
ing fees: 

COUNTY    CLERK. 

On  the  commencement  of  any  action  or  proceed- 
ing in  the  Superior  Court,  except  probate  proceed- 
ings, or  on  an  appeal  thereto,  to  be  paid  by  the  party 
commencing  such  action  or  proceeding,  or  taking 
such  appeal,  five  dollars. 

On  the  filing  of  a  petition  for  letters  of  adminis- 
tration, testamentary,  or  guardianship,  five  dollars, 
to  be  paid  by  the  petitioner;  provided,  that  at  the 
time  of  filing  the  inventory  and  appraisement  in  any 
such  proceeding  there  shall  be  an  additional  deposit 
of  one  dollar  for  each  additional  thousand  dollars  of 
the  appraised  valuation,  in  excess  of  three  thousand 
dollars. 

On  filing  the  petition  to  contest  any  will  or  codicil, 
three  dollars. 

On  the  appearance  of  any  defendant,  or  any 
number  of  defendants  answering  jointly,  to  be  paid 


66  FEE   BILL. 

upon  filing  the  first  paper  in  the  action  by  him  or 
them,  two  dollars. 

On  placing  any  action,  excepting  a  probate  pro- 
ceeding, or  default  case,  on  the  calendar  for  trial  or 
hearing,  to  be  paid  by  the  party  at  whose  request 
such  action  or  proceeding  is  so  placed,  two  dollars. 

For  every  additional  defendant  appearing  sep- 
arately, one  dollar. 

The  foregoing  fees  shall  be  in  full  for  all  services 
rendered  by  such  Clerk  in  the  cause,  to  and  includ- 
ing the  making  up  of  the  judgment  roll. 

On  the  filing  of  any  notice  of  motion  to  move  for 
a  new  trial  of  any  civil  action  or  proceeding,  the 
party  filing  same  shall  pay  to  the  clerk,  in  full  for 
all  services  to  be  rendered  in  connection  with  said 
motion,  except  as  hereinafter  in  this  section  pro- 
vided, two  dollars. 

For  issuing  an  execution  or  order  of  sale  in  any 
action,  one  dollar. 

In  all  proceedings  begun  or  acts  performed  prior 
to  this  act  becoming  a  law,  such  fees  and  charges  as 
were  provided  by  law  at  the  time  such  proceedings 
were  begun  or  acts  performed. 

The  clerk  shall  also  charge  and  collect  the  follow- 
ing fees  and  compensation  not  above  provided  for: 

For  any  copy  of  any  record,  proceeding,  or  paper 
on  file  in  the  office  of  the  Clerk  relating  to  any  civil 
action  pending  in  said  court,  when  such  copy  is 
made  by  him,  per  folio,  ten  cents. 

For  each  certificate  of  the  Clerk,  under  the  seal 
of  the  court,  twenty-five  cents. 

For  filing  each  claim  in  probate  or  insolvency 
proceedings,  fifteen  cents. 

No  fees  shall  be  allowed  or  charged  by  the  Clerk 
for  services  rendered  in  any  criminal  case. 

For  services  rendered  by  the  Clerk,  not  in  con- 
nection with  civil  actions  or  proceedings  in  court,  he 


FEE    BII.I,.  67 

shall  charge  and  collect,  for  the  benefit  of  the 
county,  the  following  fees: 

For  issuing  marriage  license,  one-half  to  be  paid 
to  the  County  Recorder,  two  dollars. 

For  filing  and  indexing  articles  of  incorporation, 
one  dollar. 

For  filing  and  indexing  certificates  of  copartner- 
ship, one  dollar. 

For  filing  and  indexing  all  papers  to  be  kept  by 
him,  other  than  papers  filed  in  actions  or  proceedings 
in  court,  and  official  bonds  and  certificates  of  ap- 
pointment, each,  twenty-five  cents. 

For  issuing  any  license  required  by  law,  other 
than  marriage  licenses,  one  dollar. 

For  examining  and  certifying  to  a  copy  of  any 
paper,  record,  or  proceeding  prepared  by  another, 
and  presented  for  his  certificate,  fitly  cents,  and  one 
cent  per  folio  for  comparing  the  said  copy  with  the 
original. 

For  making  satisfaction  of  or  credit  on  judgment, 
twenty -five  cents. 

For  receiving  and  filing  remittitur  from  Supreme 
Court,  fifty  cents. 

For  administering  each  oath,  without  certificate, 
except  in  pending  action  or  proceeding,  ten  cents. 

For  taking  any  affidavit,  except  in  criminal  cases, 
twenty-five  cents. 

For  taking  and  approving  each  undertaking  and 
the  justification  thereof,  except  in  criminal  cases, 
fifty  cents. 

For  searching  records  or  files,  for  each  year,  fifty 
cents. 

For  taking  acknowledgment  of  any  deed  or  other 
instrument,  including  the  certificate,  fifty  cents. 

For  filing  notices  of  appeal  and  appeal  bonds, 
each,  twentv-five  cents. 


68  FEE    BILL. 


SHERIFF. 

For  serving  any  process,  writ,  order,  or  paper,  ex- 
cept as  hereinafter  provided,  required  In  law  to  be 
served  by  the  ^Sheriff,  fifty  cents. 

For  serving  a  writ  of  attachment,  execution,  or 
order  for  the  delivery  of  personal  property,  one  dollar. 

For  taking  any   bond   or  undertaking,  fifty  cents, 

For  serving  an  attachment  or  execution  on  any 
ship,  boat  or  vessel,  three  dollars. 

For  keeping  and  caring  for  property  under  at- 
tachment or  execution,  such  sum  as  the  court  may 
fix;  provided,  that  no  greater  sum  than  two  dollars 
per  day  shall  be  allowed  to  a  keeper  when  necessarily 
employed. 

For  a  copy  of  any  writ,  process,  or  paper  actually 
made  by  him,  when  required  or  demanded  accord- 
ing to  law,  per  folio,  ten  cents;  provided  that  when 
correct,  copies  are  furnished  to  him  for  use,  no  charge 
shall  be  made  for  such  copies. 

For  advertising  sale  of  property  and  posting 
notice,  exclusive  of  cost  of  publication,  or  furnishing 
notice  for  publication,  each,  fifty  cents. 

For  publication  of  notice  in  newspaper,  the  rea- 
sonable cost  of  publication,  subject  to  the  approval 
of  the  court. 

For  serving  writ  of  possession  or  restitution,  put- 
ting a  person  in  possession  of  the  premises,  and  re- 
moving the  occupant,  one  dollar  and  fifty  cents. 

For  subpoenaing  witness,  including  copy  of  sub- 
poena, each  twenty-five  cents. 

For  summoning  trial  jury  of  twelve  or  less,  two 
dollars. 

For  each  additional  juror,  ten  cents. 

For  traveling  in  the  service  of  any  paper  required 
by  law  to  be  served,  for  each  mile  actually  and 
necessarily  traveled,  one  way  only,  fifteen  cents, 
when  such  travel  can  be  made  by  rail;  in  other  cases. 


FEE    BILL.  69 

twenty-five  cents.  No  constructive  mileage  to  be 
allowed. 

For  collecting  money  on  execution,  with  or  with- 
out levy,  one  per  cent,  o.i  the  h'rst  thousand  dollars 
or  less,  and  one-half  of  o.ie  per  cent  on  all  sums  over 
one  thousand  dollars. 

For  executing  and  delivering  Sheriff's  deed,  one 
dollar  and  fifty  cents. 

For  executing  and  delivering  certificate  of  sale 
fifty  cents. 

For  transporting  prisoners  to  the  county  jail,  the 
actual. cost  of  such  transportation. 

For  executing  and  delivering  any  other  instru- 
ment, ten  cents  per  folio. 

RECORDER. 

For  recording  every  instrument,  paper,  or  notice 
required  by  law  to  be  recorded,  per  folio,  ten  cents. 

For  indexing  every  instrument,  paper  or  notice, 
for  each  name,  ten  cents. 

For  filing  every  instrument  for  record,  and 
making  the  necessary  entries  thereon,  twenty  cents. 

For  each  certificate  under  seal,  twenty-five  cents. 

For  every  entry  of  discharge,  credit,  or  release  on 
the  margin  of  record,  and  indexing  same,  twenty- 
five  cents. 

For  searching  the  records  of  his  office,  for  each 
year,  fifty  cents. 

For  abstract  of  title,  for  each  conveyance  or  in- 
cumbrance,  twenty-five  cents. 

For  recording  each  map  or  plat  where  the  same  is 
copied  in  a  book  of  ^ecord,  for  each  course,  ten 
cents. 

For  recording  each  map  or  plat  where  the  same  is 
not  copied  in  a  book  of  record,  fifty  cents. 


70  FEE   BItt. 

For  figures  or  letters  on  maps  or  plats,  per  folio, 
ten  cents;  provided,  that  the  fees  for  recording  any 
map  shall  not  exceed  fifty  dollars. 

For  taking  acknowledgment  of  any  instrument, 
fifty  cents. 

For  recording  marriage  license  and  certificate,  to 
be  paid  by  the  county  clerk,  one  dollar. 

For  recording  transcript  and  all  services  in  estray 
cases,  one  dollar. 

For  recording  each  mark  or  brand,  fifty  cents. 

For  administering  each  oath  or  affirmation,  and 
certifying  the  same,  twenty-five  cents. 

For  filing,  indexing,  and  keeping  each  paper  not 
required  by  law  to  be  recorded,  twenty-five  cents. 

The  Clerk,  Sheriff  and  Recorder  shall  account  for 
all  fees  in  this  section  provided  for,  and  the  Clerk. 
Sheriff  and  Recorder,  unless  otherwise  provided  by 
law,  shall  pay  the  same  to  the  County  Treasurer  on 
the  first  Monday  of  the  month  following  their  col- 
lection, as  provided  in  this  act. 

CONSTABLES   AND    MARSHALS. 

For  serving  summons  and  complaint,  for  each 
defendant  served,  fifty  cents. 

For  each  copy  of  summons  for  service  when  made 
by  him,  twenty-five  cents. 

For  levying  writ  of  attachment  or  execution,  or 
executing  order  of  arrest,  of  the  delivery  of  personal 
property,  one  dollar. 

For  serving  writ  of  attachment  or  execution  on 
any  ship,  boat  or  vessel,  three  dollars. 

For  keeping  personal  property,  such  sum  as  the 
court  may  order,  but  no  more  th^n  two  dollars  per 
day  shall  be  allowed  for  a  keeper  when  necessarily 
employed. 

For  taking  bond  or  undertaking,  fifty  cents. 


FEE    BII,I<.  71 

For  copies  of  writs  and  other  papers,  except 
summons,  complaint  and  subpoenas,  per  folio,  ten 
cents;  provided  that  when  correct  copies  are  fur- 
nished him  for  use,  no  charge  shall  be  made  for  such 
copies. 

For  serving  any  writ,  notice  or  order,  except  sum- 
mons,   complaint,   or    subpoenas,    for    each    person . 
served,  fifty  cents. 

For  writing  and  posting  each  notice  of  sale  of 
property,  twenty -live  cents. 

For  furnishing  notice  for  publication,  twenty-five 
cents. 

For  serving  subpoenas,  each  witness,  including 
copy,  twenty-five  cents. 

For  collecting  money  on  execution,  one  and  one- 
half  per  cent. 

For  executing  and  delivering  certificate  of  sale, 
fifty  cents. 

For  executing  and  delivering  Constable's  deed, 
one  dollar  and  fifty  cents. 

For  each  mile  actually  traveled  within  his  town- 
ship in  the  service  of  any  writ,  order,  or  paper,  ex- 
cept a  warrant  of  arrest,  in  going  only,  per  mile, 
twenty-five  cents. 

For  traveling  outside  of  his  township  to  serve 
such  writ,  order,  or  paper,  in  going  only, 
fifteen  cents;  provided,  that  a  Constable  shall  not  be 
required  to  travel  outside  of  his  township  to  serve 
any  civil  process,  order,  or  paper.  No  constructive 
mileage  allowed. 

For  each  mile  necessarily  traveled  within  his 
county  in  executing  a  warrant  of  arrest,  both  in 
going  and  returning  from  place  of  arrest,  fifteen 
cents. 

For  each  mile  traveled  out  of  his  county,  both 
going  and  returning  from  place  of  arrest,  five  cents; 
provided,  that  no  mileage  shall  be  charged  for  a 


72  FEE    B1I,!,. 

warrant  of  arrest  or  criminal  piocess  served  outside 
of  his  township,  except  such  service  be  approved  in 
writing  by  the  District  Attorney  of  the  county;  and 
provided  further,  that  for  traveling  in  the  perform- 
ance of  two  or  more  official  services  at  the  same  time, 
including  the  service  of  civil  process  or  criminal 
warrants,  or  transportation  of  persons  charged  or 
convicted  of  a  criminal  offense,  but  one  mileage  shall 
be  charged;  provided,  that  in  criminal  cases  he  shail 
not  receive  more  than  one  hundred  dollars  in  any 
one  month,  and  not  more  than  one  thousand  dollars 
in  any  one  year. 

For  executing  a  search  warrant,  such  fees  and 
mileage  as  may  be  allowed  for  executing  warrant  of 
arrest. 

For  arresting  prisoner  and  bringing  him  into 
court,  one  dollar. 

For  summoning  a  jury,  two  dollars,  including 
mileage. 

For  transporting  prisoners  to  the  county  jail,  the 
actual  cost  of  such  transportation. 

Provided,  that  the  Board  of  Supervisors  may  re- 
ject all  bills  presented  to  the  county  by  Justices 
of  the  Peace  and  Constables  for  fees  in  criminal 
cases  in  all  cases  of  proceedings  in  which  the  Dis- 
trict Attorney  has  not,  in  writing,  approved  the  is- 
suance of  the  warrant  of  arrest. 

County  officers  must,  and  township  officers  may, 
demand  the  payment  of  all  fees  in  civil  cases,  in 
advance  • 

JUSTICES  OF  THE  PEACE. 

Justices  of  the  Peace  may,  for  their  own  use,  col- 
lect the  following  fees,  and  no  others; 

Each  Justice  of  the  Peace  shall  be  allowed,  in  a 
civil  action  before  him,  for  all  services  to  be  per- 
formed by  him  before  trial,  two  dollars;  and  for  the 


FEE   BII,!,. 


trial  and  all  proceedings  subsequent  thereto,  in- 
cluding-all  affidavits,  swearing  witnesses  and  jury 
and  the  entry  of  judgment  and  issue  of  execution 
thereon,  three  dollars;  and  in  all  cases  where  judg- 
ment is  rendered  by  default  or  confession,  for  all 
services,  including  execution  and  satisfaction  of 
judgment,  two  dollars. 

For  all  services  in  a  criminal  action  or  proceeding, 
whether  on  examination  or  trial,  three  dollars;  pro- 
vided, however,  that  no  more  than  the  sum  of  $75, 
in  any  one  month,  shall  be  allowed  out  of  the  County 
Treasury,  in  misdemeanor  cases,  to  any  one  Justice. 

For  taking  bail  after  commitment  by  another 
magistrate,  fifty  cents. 

For  certificate  and  transmitting  transcript  and 
papers  on  appeal,  one  dollar. 

For  copies  of  papers  on  docket,  per  folio,  ten 
cents. 

For  issuing  a  search  warrant,  to  be  paid  by  the 
party  demanding  the  same,  fifty  cents. 

For  celebrating  a  marriage  and  returning  a  cer- 
tificate thereof  to  the  County  Recorder,  {3. 

For  taking  an  acknowledgment  of  any  instru- 
ment, for  the  first  name,  fifty  cents;  for  each  ad- 
ditional name,  twenty-five  cents. 

For  taking  depositions,  per  folio,  fifteen  cents. 

For  administering  an  oath  and  certifying  same, 
twenty-  five  cents. 

For  issuing  a  commission  to  take  testimony,  fifty 


For  all  services  connected  with  the  posting  of 
estrays,  f  i.oo. 

In  cases  befoie  the  Justice  of  the  Peace,  when 
the  venue  shall  be  changed,  the  Justice  before  whom 
the  action  shall  be  brought,  for  all  services  rendered, 
including  the  making  up  and  transmission  of  the 
transcript  and  papers,  shall  receive  one  dollar;  and 


74  FEE  BII.L. 

the  Justice  before  whom  the  trial  shall  take  place 
shall  receive  the  same  fees  as  if  the  action  had  been 
commenced  before  him. 

For  performing  the  duties  of  Coroner,  when  the 
Coroner  fails  to  act,  the  same  fees  and  mileage  as 
are  allowed  the  Coroner  in  like  cases. 

For  issuing  each  process,  writ,  order,  or  paper 
required  by  law  to  be  issued  not  otherwise  herein 
provided  for,  twenty -five  cents. 

For  administering  oath  or  affirmation  not  other- 
wise herein  provided  for  ten  cents. 

For  each  certificate  or  affidavit  not  otherwise 
herein  provided  for,  twenty-five  cents. 

For  taking  and  approving  bond  or  undertaking, 
including  the  justification  of  sureties,  fifty  cents. 

19.     Jurors'   and  witness'  fees  shall  be  as  follows: 

JURORS'  FEES. 

For  attending  as  a  grand  juror  or  juror  in  the 
Superior  Court,  for  each  day's  attendance^  per  day, 
two  dollars. 

For  attending  Justice's  Court,  for  each  juror 
sworn  to  try  the  cause,  per  day,  in  civil  cases  only, 
two  dollars. 

For  each  mile  actually  traveled  in  attending 
Court  as  a  juror,  except  in  criminal  cases  in  Justice's 
Court,  for  which  no  allowance  shall  be  made  in  going 
only,  per  mile,  titteen  cents. 

WITNESS'  FEES. 

For  each  day's  actual  attendance,  when  legally 
required  to  attend  upon  the  Superior  Court,  per  day, 
f  2  oo  in  civil  cases  and  $1.50  in  criminal  cases. 

Mileage  actually  traveled,  one  way  only,  per  mile, 
ten  cents;  provided,  however,  that  in  criminal  cases, 


FEE    BII,IV.  75 

such  per  diem  and  mileage  shall  only  be  allowed 
upon  a  showing  to  the  Court,  by  the  witness,  that 
the  sanie  are  necessary  for  the  expenses  of  the  wit- 
ness in  attending,  and  the  Court  shall  determine  the 
necessity  for  the  same,  and  may  disallow  any  fees  to 
a  witness  unnecessarily  subpoenaed. 

For  each  day's  attendance  upon  Justice  Court,  in 
civil  cases  only,  when  legally  required  to  attend,  per 
day,  1 1. oo. 

For  each  mile  actually  traveled  in  civil  cases  only, 
in  Justice's  Court,  in  going  only,  ten  cents. 

Witnesses  jn  civil  cases  may  demand  the  pay- 
ment of  their  mileage  and  fees  for  one  day  in  ad- 
vance, and  when  so  demanded  shall  not  be  compelled 
to  attend  until  the  same  shall  have  been  paid. 

CORONER. 

Coroners  may,  for  their  own  use,  collect  the  fol- 
lowing fees,  and  no  others: 

For  general  services  in  holding  an  inquest,  fio. 

For  each  witness  subpoenaed,  twenty-five   cents. 

For  each  mile  necessarily  traveled  in  going  to  the 
place  of  the  inquest,  twenty-five  cents. 

For  directing  or  attending  the  interment  of  each 
body  upon  which  an  inquest  has  been  held,  $2; 
which  fees  shall  be  ail  that  he  shall  be  entitled  to 
charge. 

When  acting  as  or  in  the  place  of  the  sheriff,  the 
same  fees  as  are  allowed  the  sheriff  for  like  services. 

PUBLIC    ADMINISTRATOR. 

The  Public  Administrator  shall  charge  and  collect 
such  fees  as  are  now  or  may  hereafter  be  allowed  by 
law. 


76  FEE    BILL. 


COUNTY    SURVEYOR. 

The  County  Surveyor  shall  charge  and  collect 
such  fees  as  are  now  or  may  hereafter  be  all<>m<l 
by  law. 

Six.  2.  No  fees  or  other  compensation  shall  be 
paid  for  certificate  of  declaration  to  become  a  citizen 
of  the  United  States,  and  for  making  a  record  tln-rt  - 
of,  or  for  issuing  a  certificate  of  citizenship  to  be- 
come a  citizen  of  the  United  States,  or  for  making  a 
record  thereof;  and  no  fees  or  other  compensation 
shall  be  paid  for  filing  the  statement  and  affidavit  of 
a  committee  or  candidate  voted  for  .at  any  publir 
election  held  within  the  state;  and  this  section  shall 
apply  to  all  the  counties  in  this  state. 

SEC.  3.  All  acts  or  portions  of  acts  inconsistent 
herewith  are  hereby  repealed. 

SEC.  4.     This  act  shall  take  effect  immediately. 


FORMS   OF   CERTIFICATES.  77 

FORMS  OF  CERTIFICATES. 

PARTY    IDENTIFIED. 

STATE  OF  CALIFORNIA,) 

COUNTY    OF /  v  ' 

On  this  —  day  of in  the  year  one  thousand 

eight  hundred  and before  me  [name  of  notary], 

a    Notary  Public    in   and    for  said County, 

residing  therein,  duly  commissioned  and  sworn,  per- 
sonally appeared  [name  of  person  executing  instru- 
ment], proved  to  me  on  the  oath  of  [here  insert  name 
of  identifying  witness],  to  be  the  person  — described 
in,  whose  name  -  subscribed  to  and  who  ex- 
ecuted the  within  instrument,  and—  acknowledged  to 
me  that —  he —  executed  the  same. 

In  witness  whereof,  I  have  hereunto 

set  my    hand    and   affixed   my 

official   seal,   at  my  office  in  the 
[Notarial  Seal.]     said  county  of  ,    the  day 

and  year  in  this  certificate  first 

above  written. 

Notary  Public  in  and  for  the  County  of ,  State 

of  California. 

GENERAL- 
STATE  OF  CALIFORNIA,  \ 

COUNTY    OF   -  —  J 

On  this  —  day  of in  the  year  one  thousand 

eight  hundred  and ,  before  me  [here  insert  name 

of  notary],  a  Notary  Public  in  and  for  said  — county, 
residing  therein,  duly  commissioned  and  sworn, 
personally  appeared  [name  of  person  executing  in- 
strument] known  to  me  to  be  the  person  described 


78  FORMS   OF   CERTIFICATES. 

in,  whose  name — subscribed  to  and  who  executed  the 

within   instrument,   and acknowledged   to  me 

that  — he —  executed  the  same. 

In  witness  whereof,  I  have  hereunto 
set  my  hand  and  affixed  my 
official  seal,  at  my  office  in  the 

[Notarial  Seal  ]     said    connty  of ,  the  day 

and  year  in  this  certificate  first 
above  written. 


Notary  Public  in  and  for  the  County  of  ,  State 

of  California. 

CORPORATION. 

STATE  OF  CALIFORNIA,) 

COUNTY    OF J      ' 

On  this  —  day  of in  the  year  one  thousand 

eight  hundred  and before  me,  [here  insert  name 

of  notary]  a  Notary  Public,  in  and  for  said  count}' 

of ,  personally  appeared  [here  insert  name  of 

President  or  Secretary  of  the  corporation,  as  the  case 
may  be]  personally  known  to  me  to  be  the  [President 
or  Secretary,  as  the  case  may  be]  ,of  the  corporation 
that  executed  the  within  'instrument,  and  acknowl- 
edged to  me  that  said  corporation  executed  the  same. 
In  witness  whereof.  I  have  hereunto 

set   my    hand    and   affixed    my 

official  seal,  at  my  office  in  said 
[Notarial  Seal.]  county  of  ,  the  day  and 

year  in  this  certificate  first  above 

written : 


Notary  Public  in  and  for  the  County  of ,  State 

of  California. 


FORMS   OF   CERTIFICATES.  79 

Form  No.  4. 

WITNESS. 
STATE  OF  CALIFORNIA,! 

COUNTY    OF | 

On  this  —  day  of ,  in  the  year  one  thousand 

eight    hundred    and ,    before    me,   [here   insert 

name  of  Notary]  a    Notary    Public    in  and    for   said 

county,  residing  therein,    duly  commissioned 

and  sworn,  personally  appeared,  [here  insert  name 
of  witness]  known  to  me  to  be  the  same  person  whose 
name  is  subscribed  to  the  within  instrument  as  a 
subscribing  witness  thereto,  who,  being  by  me  duly 
sworn,  deposed  and  said  that  he  resides  in  the  said 

County  of ,  State  of   California,   that    he    was 

present  and  saw,  [here  insert  name  of  person  execut- 
ing deed]  personally  known  to  him  to  be  the  same 
person  described  in  and  whose  name  is  subscribed  to 
the  within  instrument  as  a  party  thereto,  sign  and 
execute  the  same;  and  that  he,  the  affiant,  then  and 
there  subscribed  his  name  to  said  instrument  as  a 
witness. 

In  witness  whereof,  I  have  hereunto 

set  my    hand,   and    affixed    my 

official   seal,   at  my  office  in  the 
[Notarial  Seal.]     said   county   of   ,  the  day 

and  year  in  this  certificate  first 

above  written. 


Notary  Public  in  and  for  the  County  of — ,  State 

of  California. 

Form  No.  5. 

ATTORNEY    IN    FACT. 

STATE  OF  CALIFORNIA,) 

COUNTY    OF /  Si 

On  this  —  day  of ,  in  the  year  one  thousand 

eight  hundred   and   ,   before    me,    [here   insert 


80  FORMS  OF  CERTIFICATES 

name  of  Notary]  a  Notary  Public,  in  and  for  the  said 

,  county  of — ,  personally  appeared,    [here 

insert  name  of  the  attorney  in  fact]  personally  known 
to  me  to  be  the  same  person  whose  name  is  sub- 
scribed to  the  within  instrument,  as  the  attorney  in 
fact  of  [here  insert  name  of  the  principal]  and  the 
said  [insert  name  of  attorney  in  fact],  duly  acknowl- 
edged to  me  that  he  subscribed  the  name  of  [insert 
name  of  principal],  thereto  as  principal  and  his  own 
name  as  attorney  in  fact. 

In  witness  whereof,  I  have  hereunto 
set  my  hand  and  affixed  my 
official  seal  at  my  office  in  said 

[Notarial  Seal.]     county   of  — > ,  the   day  and 

year  in  this  certificate  first  above 
written. 


Notary  Public  in  and  for  the  County  of ,  State 

of  California. 

form   No.  6. 

HUSBAND    AND    WIFE. 

STATE  OF  CALIFORNIA,) 

COUNTY   OF .  J     v 

On  this day  of in  the    year   one   thousand 

eight  hundred  and  ninety — ,  before  me, ,  a  No- 
tary Public  in  and  for  said  County  and  State,  residing 
therein,  duly  commissioned  and  sworn,  personally 

appeared,  -^—  and wife  of  said  —       —  known  to 

me  to  be  the  persons  described  in,  whose  names  are 
subscribed  to  and  who  executed  the  within  instru- 
ment, and  they  acknowledged  to  me  that  they  execu- 
ted the  same. 

In  witness  whereof,  I  have  hereunto 
set  my  hand  and  affixed  my  offi- 
cial seal  at  mv  office  in  the 


FORMS   OF   CERTIFICATES.  8l 

County  of ,   the    day    and 

(Notarial  Seal.)        year  in  this  certificate  first  above 
written. 


Notary  Public  in  and   the  County   of ,  State   of 

California. 

Form  No.  7. 

MARRIED    WOMAN. 

STATE  OF  CALIFORNIA.) 

COUNTY  OF J 

On  this day  of in  the  year  one   thousand 

eight  hundred  and  ninety —  before  me, ,  a  No- 
tary Public  in  and  for  said  County  and  State,  residing 
therein,  duly  commissoned  and  sworn,  personally  ap- 
peared  the  wife  of known  to  me  to  be  the  per- 
son described  in,  whose  name  is  subscribed  to  and 
who  executed  the  within  instrument,  and  she  ac- 
knowledged to  me  that  she  executed  the  same. 

In  witness  whereof,  I  have  hereunto 
set  my  hand  and  affixed  niy 
official  seal  at  my  office  in  the 
County  of  —  the  day  and 
(Notarial  Seal.)  year  in  this  certificate  first  above 
written. 


Notary  Public  in  and  for  the  County  of  -7-—' State 

of  California. 

Form  No.  8. 

INTERPRETER. 

STATE  OF  CALIFORNIA,)   ,( 

COUNTY    OF |  Si 

On  this —    — day  of in  the  vear  one  thousand 


82  FOB  MS   OF   CERTIFICATES. 

eight  hundred  and ,  before  me  [name  of   notary] 

a  Notary  Public  in  and  for  said county,  residing 

therein,  duly  commissioned  and  sworn,  personally  ap- 
peared [names  of  individuals  executing  instrument] 
known  to  me  to  be  the  person —  described  in,  whose 

name -subscribed  to,  and  who  executed  the  within 

instrument,   and— —    acknowledged   to  me  through 
[name  of   interpreter]  a  competent   and    reliable    in- 
terpreter, sworn  by  me,  that  he —  executed  the  same. 
In  witness  whereof   I  have  herenuto 
set   my    hand    and   affixed   my 
official  seal,  at  my  office  in  said 

[Notarial  Seal.]     county   of  -,  the  day  and 

year  in  this  certificate  first  above 

written : , 

Notary  Public  in  and  for  the  County  of ,  State 

of  California. 

Form  No.  <?» 

PROTEST. 

STATE  OF  CALIFORNIA,  \ 

COUNTY    OF J 

On  the  — day  of -one   thousand   eight   hun- 
dred and —  ,  by  request  of ,  the  holder  of  the  bill 

of  exchange  hereto  attached,  I, a  notary  public 

in  and  for  the   county   of ~,    state  of  California, 

residing,  therein  and  duly  commissioned  and  sworn, 

presented  said  bill  of  exchange  at  —     — ,  in  , 

county  of — ,  state  of  California,   and    demanded 

payment  thereof  and  payment  was  refused  [stating 
reason].  Whereupon  I  did  protest  and  do  by  this 
instrument  publicly  protest,  as  well  against  the 
[drawer,  acceptor  and  endorser  as  the  case  may  be] 
as  against  all  others  concerned,  for  exchange,  re-ex- 
change and  all  other  costs,  damages  and  interest  now 
incurred  or  that  mav  be  hereafter  incurred  for  non 


FORMS   OF   CERTIFICATES.  83 

payment  of  said  bill  of  exchange,  and    I    do   hereby 

certify  that   on  the  —   day   of one    thousand 

eight  hundred  and written  notice  of  protest,  de- 
mand and  non-payment  of  said  bill  of  exchange  was 

served  upon [the  drawer] [the  endorser]  and 

[the  acceptor]  [personally  or   by    mail   as   the 

case  may  be]  by  delivering  same  to  him  at or 

mailing  it  to  him  at  his  address  at   . 

Done  and  protested  at  the  County  of State 

of  California  this  day  of 18 — . 

[Seal]  , 

Notary  Public  in  and  for  the  County  of ,  State 

of  California. 

Form  No.  ro. 

CAPTION   OF    DEPOSITION, 

In  the  Superior   Court  of  the  State  of  California? 

in  and  for  the  County  of 

,  Plaintiff, 

vs. 
,  Defendant. 

Be  it  remembered,  that   pursuant  to  the  (stipula- 
tion or  notice)  hereto  attached,  and  on  the  —  day  of 

,   A.  D.  — ,  at  my  office  in   the   County   of  , 

State  of  California,  before  me, ,  a  Notary  Public 

in  and  for  said    county  of   ,   duly  commissioned 

and   sworn,   personally   appeared    a  witness  (or 

witnesses)  on  behalf  of  (plaintiff  or  defendant)  in  the 
above  entitled  action,  who,  after  being  by  me  first 
duly  sworn  to  speak  the  truth,  the  whole  truth  and 
nothing  but  the  truth,  was  thereupon  examined  and 
interrogated  by ,  Esq.,  on  behalf  of  said  plain- 
tiff or  defendant,  and  was  then  cross-examined  by 

,  Esq.,  on  behalf  of   (plaintiff"  or  defendant)  and 

testified  as  follows:  [Here  inseit  testimony  of  wif- 
ness.]  [Name  of  witness. ) 


&4  FORMS    OF     CERTIFICATES. 

Subscribed   and   sworn   to  before  me  this  —  <la\ 
of ,  A.  D. . , 

Notary  Public  in  and  for  the  County  of ,  State 

of  California. 

Form  No.  //. 

CERTIFICATE  TO  DEPOSITION. 

STATE  OF  CALIFORNIA,) 

COUNTY    OF    .  J  Sv 

I, ,  a  Notary  Public  in  and  for  the  County  of 

,    State  of   California,  do   hereby  certify  that 

the  witness,  [or  witnesses,]  named  in   the  foregoing 

deposition(s)  to-wit: appeared  at  my  office  in  said 

County  fmd  State  on  the  —  day  of     ,  A.  D.  ; 

that  thereupon  each  witness  above  named  was  by 
me  first  sworn  to  speak  the  truth,  the  whole  truth 
and  nothing  but  the  truth;  that  said  deposition(s) 
was  taken  at  the  time  and  place  mentioned  in  the 
stipulation  (or  notice)  hereto  attached,  to-wit:  at  my 
office  in  the  Count}'  and  State  aforesaid,  and  on  said 

—  day  of ,  A.  D. ,  between  the  hours  of  —and 

—  of  said  day:  that  said  deposition(s)  was  reduced  to 
writing    by  me  (or   under   my    direction)  and   after 
being   completed   was  by   me  carefully  read  to  said 
witness  and  after   being   corrected    by  him    he  sub- 
scribed the  same  in  my  presence. 

In  witness  whereof  I  have  hereunto 
subscribed  my  name  and  affixed 
v  (Notarial   Seal.)     my   official    seal    this  — day    of 
—  ,  A.  D. . 


Notary  Public  in  and  for  the  County  of ,  State 

of  California. 


FORMS    OF    CERTIFICATES.  85 

Form  No.  12, 

PROTEST   FOR    NON-ACCEPTANCE. 

STATE  OF  CALIFORNIA,  \ 

COUNTY    OF / 

On  the  —day ,  189-,  I, ,  a  Notary  Public 

of County,  State  of  California,  duly  commis- 
sioned and  sworn  and  a  resident  of  said  county  and 
state,  by  request  of  (name  of  holder,  endorser  or  en- 
dorsee) did  present  the  bill  of  exchange  attached 
hereto  to ,  the  drawee  therein  named  for  ac- 
ceptance and  he  refused  to  accept  the  same  : 

Whereupon  by  said  request  I  did  protest  and  by 
these  presents  do  protest  as  well  against  the  drawee 
(endorser  if  any)  of  said  bill  as  against  all  others 
concerned  for  exchange,  re-exchange  and  all  costs, 
damages  and  interest  incurred  and  to  be  incurred 
for  want  of  acceptance  thereof, 

Done  and  protested  at  the  county  of ,  State 

of  California,  this  — day  of 189- 

[Notarial  Seal.]  , 

Notary  Public    in  and  for  the  County  of State 

of  "California. 


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